41

*IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P.(C) 6111/2007 & CM 11422/2007

CONSTABLE GAJENDRA PRASHAD ..... Petitioner

Through

Mr.R.K.Anand, Sr.Advocate with

Ms.Shivani Lal and Mr.Vishv

Nidhi, Advocates

versus

U.O.I & ANR

..... Respondent

Through

Mr.Ashwani Bhardwaj, Advocate

Ms.Jyoti Singh, Advocate for UOI

CORAM:

HON'BLE MR. JUSTICE VIKRAMAJIT SEN

HON'BLE MR. JUSTICE S.L.BHAYANA

(1)Whether reporters of local papers may be allowed to see

the Order?

Yes

(2)To be referred to the reporter or not?

Yes

(3)Whether the Order should be reported in the

Digest?

Yes

O R D E R

% 21.08.2007

It is not in dispute that while the Petitioner was

discharging his duties at Out-Post Phobrang at Laddaq in 1998-99

he suffered from frostbite. The Petitioner was placed in medical

category EEE due to “Pheripheral Vascular Disease (PVD) both

W.P.(C) 6111/2007                                                                          Page   1 of 8

2007:DHC:965-DB

lower limbs with Rt.SK and Lt. Toe amputation”. By

Memorandum dated 30.4.2001, keeping in view the type of job

for which the Petitioner was recruited in the Indo- Tibetan Border

Police Force the Board had opined that he is completely and

permanently incapacitated for the job and hence was

recommended to be boarded out of service. Notwithstanding this

recommendation the Director General, ITBP had passed Orders

for the retention of the Petitioner in service. Keeping in view

that the Petitioner has passed the XIIth class pass he was

assigned duties of clerical nature which he has been performing

since then. By means of the impugned Order, after making a

reference of his medical category EEE a decision has been taken

to terminate the service of the Petitioner by invalidating him on

the recommendation of the Board with effect from 27.8.2007, by

Office Memorandum dated 28.7.2007. However, it is relevant

that the medical condition of the Petitioner has not deteriorated.

Mr.Ashwani Bhardwaj, learned counsel appearing for

the Respondents has raised a preliminary objection that this

Court ought not to exercise territorial jurisdiction over the

dispute as the impugned Order has been passed in Sonepat,

W.P.(C) 6111/2007                                                                          Page   2 of 8

2007:DHC:965-DB

Haryana. Mr.R.K.Anand, learned Senior Counsel appearing for

the Petitioner, however, draws our attention to the previous

Order of the Director General passed in New Delhi, which

retained his services as a Clerk. We do not think this case

warrants that we should decline exercising our writ jurisdiction.

Mr.Anand has also drawn our attention to Section 47

of The Persons with Disabilities (Equal Opportunities, Protection

of Rights and Full Participation) Act, 1995, and the decision

rendered thereon by the Hon'ble Supreme Court in Kunal

Singh -vs- Union of India, (2003) 4 SCC 524. Kunal

Singh was serving in the Special Service Board (SSB) and while

performing his duties he suffered an injury to his left leg. The

medical aid given to him was improper as a result of which his

left leg was amputated on account of gangrene which had

developed from the injury. Even in those circumstances, their

Lordships had opined that it is “well settled that in the same

enactment if two distinct definitions are given defining a word/

expression, they must be understood accordingly in terms of the

definition. It must be remembered that a person does not acquire

or suffer disability by choice. An employee, who acquires

disability during his service, is sought to be protected under

W.P.(C) 6111/2007                                                                          Page   3 of 8

2007:DHC:965-DB

Section 47 of the Act specifically. Such empl