Regular Second Appeal No. 3268 of 2008

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Regular Second Appeal No. 3268 of 2008

Date of Order: 20.10.2008

State of Haryana and others

...Appellants

Versus

Dhir Singh

..Respondent

CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA

Present: Mr. Lokesh Sinhal, Addl. A.G.Haryana,

for the appellants.

RAJIVE BHALLA, J (Oral).

The State of Haryana challenges the judgment and decree

passed by the Additional District Judge-I, Jind, dated 22.07.2008

accepting the appeal filed by the respondent and reversing the judgment

and decree passed by the Additional Civil Judge, Jind, dated 27.03.2006.

The plaintiff-respondent, who was working as a driver with

Haryana Roadways, Jind was pre-maturely retired from service on

08.07.1995 on medical grounds. Pursuant to directions issued in

C.W.P.No.1733 of 1995 and upon a reconsideration of the matter, the

respondent was posted as a Security Guard in the pay scale of Rs.2550-

3200 plus usual allowances on 23.03.1999, with effect from 09.07.1995.

The plaintiff-respondent filed a suit by placing reliance upon Section 47 of

the Persons with Disabilities (Equal Opportunities, Protection of Rights and

Full Participation) Act, 1995 and asserted that he had to be granted the

same pay scale and service benefits as were paid to him as a driver. The

appellants on the other hand opposed this prayer by asserting that as the

respondent had accepted his employment as a Security Guard, his claim

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based upon the provisions of Section 47 was not tenable. The trial Court

dismissed the suit by holding that the notification dated 27.06.2005

exempts the post of driver and conductor from the operation of Section 47

of the Act. The respondent's claim, therefore, could not be accepted. The

first appellate Court, however, accepted the appeal filed by the respondent

and decreed his suit by holding that the notification did not apply to the

respondent. Reliance was also placed upon a judgment of this Court

rendered in CWP NO.15447 of 2004 titled as Rupender Singh v. State of

Haryana.

Counsel for the appellants submits that the proviso to Sub

section 2 of Section 47, empowers the State Government to exempt any

establishment from the provisons of Section 47. In exercise of these

powers, the State of Haryana has issued a notification No.

G.S.R/Const./Art.309/2004, dated 27.06.2005 exempting the posts of

drivers and conductors in the Haryana Roadways from the provisions of

Section 47. It is, therefore, submitted that the first appellate Court,

committed an error of law in discarding this notification and granting relief

to the respondent.

I have heard counsel for the appellant and have perused the

impugned judgments as also the provisions of Section 47 of the Act and

the notification dated 27.06.2005.

Section 47 of the Act reads as follows:-

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

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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 avaiilable or

he attains the age of superannuation, whichever is

earlier.

(2) No promotion shall be 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 be specified in such

notification, exempt any establishme