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1996 DIGILAW 400 (RAJ)

Bhanwar Singh v. State of Rajasthan

1996-04-17

B.J.SHETHNA

body1996
Honble SHETHNA, J. – The petitioner has challenged in this petition his impu gned order of discharge from service Annex,2 dated Sept.28,1994 passed by Superintendent of Police, Jodhpur non-petitioner No.4 and Annex.13 dated 23.8.1994. (2). The petitioner is having educational qualification of Higher Secondary in 1967 with the knowledge of typing. He was appointed as Constable (C.P.) on Feb. 4,1970,while in service he sufferred from knee decease in both legs and, therefore, he was unable to discharge his duties as Constable. A Medical Board consisting of three expert doctors was constituted and the petitioner was examined by the Board on May 15, 1984 and the following deformities were found: ``1.Ankylosis of left knee of 110 2. Flexion contracture of right knee of 130,with Jog of movement, i.e. 130 to 140. 3. Fixed flexion deformity of right hip of 50; further range is full, other movements are normal. (3). Looking to these deformities, the Board opined that the petitioner was in- capable of an active life normal associated with the duties of a Police Constable.However,he is fully capable of doing a clerical type job (Desk work) which does not require mobility,i.e. Arm Chair Job, since his upper limbs are normal.Thus, the Medical Board found the petitioner medically unfit as a police constable,but found him fit for clerical job. Surprisingly, on the basis of medical report the non-petitioner No.4. Superintendent of Police,Jodhpur discharged the petitioner from service as constable by his impugned order dated Sept.28,1984, Annex.2 without absorbing him in the department on the clerical post. Before passing of that order the petitioner submitted an application to the Superintendent of Police, Jodhpur by registered post requesting him to absorb him on any other post in the department as per the provisions of the Rajasthan Employment of Physically Handicapped Persons Rules, 1976,for short the Rules. On Sept. 28, 1984 he made another application directly to the Addl. Inspector General of Police, Jaipur by registered post to absorb him on any other clerical post, the copy of which was also sent to the Deputy Inspector General of Police, Jodhpur, by his letter dated Dec.11, 1984 as well as radiogram dated Dec.11,1984 directed the Superintendent of Police, Sirohi to appoint the petitioner as L.D.C. under the Rules of 1976. On Dec. 31, 1984 the petitioner presented himself before S.P. Sirohi,but he was not given appointment and asked to obtain N.O.C. from the Govt. On Dec. 31, 1984 the petitioner presented himself before S.P. Sirohi,but he was not given appointment and asked to obtain N.O.C. from the Govt. Thereafter S.P. Sirohi informed the DIG Jodhpur that according to Collector, Sirohi it was not possible to give N.O.C as other L.D.Cs. working in Census department were available and, therefore, the petitioner may obtain NOC from the General Administrative Department. Meanwhile, the post of L.D.C. fallen vacant in Police Automobile Work Shop, therefore, the petitioner approached the DIG on Dec. 15, 1985, but this time the DIG, Jodhpur was of the opinion that the petitioner was also over age by that time and, therefore, he requested the DIG Jaipur by his letter dated 22.5.86 for relaxation in age limit. Thereafter,the State Govt.informed the DGP, that the petitioner ought to have been absorbed under the Rules provided he was capable of discharging the duties of that post. Thereupon, the non-petitioner no 3, DIG Jodhpur by his letter dated June 27, 1986 sought clarification from DIP,Jaipur to recall the impugned order of discharge as the petitioner was already discharged from service. Unfortunately, by letter dated August 23, 1986 the State Govt. informed the DIG that the post of L.D.C. can only be filled in by the RPSC and the post of Constable is lower than the post of L.D.C., therefore,the petitioner may be absorbed on some other post. (4). Fed up with this attitude of the bureaucrats and their bureaucracy the petitioner ultimately gave a notice for demand of justice through his counsel on Nov. 9 1986. But, it had fallen on deaf ears and they have not even bothered to reply the same. Therefore, the petitioner has approached this court by way of this writ petition under Article 226 of the Constitution of India and prayed that the impugned order at Annex.2 and the communication at Annex.13 be quashed and set aside and the non-petitioners be directed to appoint the petitioner as L.D.C. and to give him all consequential benefits of service including back wages etc. (5). Learned counsel for the petitioner from the facts narrated above submitted that the approach of the non- petitioners was not only inhumane to the peti- tioner but it is a proof of bureaucracy. The petitioner who become the victim of the nature made to suffer more by such approach of the authorities. (5). Learned counsel for the petitioner from the facts narrated above submitted that the approach of the non- petitioners was not only inhumane to the peti- tioner but it is a proof of bureaucracy. The petitioner who become the victim of the nature made to suffer more by such approach of the authorities. He submitted that on the one hand the Govt. is trying to take care of the handicapped persons for which the rules are also framed.But, when the question of its implementation comes it is the approach of the authorities to see to it that it is not implemented in its true spirit. He further submitted that as per the Medical Report it was the duty of the authorities to absorb the petitioner on an alternative post before passing the impugned order of discharge. He also submitted that the objection raised as per Annex.13 was absolutely unsustainable because the petitioner was otherwise qualified to be appointed on the post of L.D.C. with an additional knowledge of ty- ping and that fact is not disputed by the learned Govt. Advocate Shri U.C.S.Singhvi. Therefore,he submitted that the impugned order of discharge be set a side and the respondents be directed to absorb the petitioner on the post of L.D.C or any other suitable post. As against this, learned counsel Shri Singhvi for the respondents only submitted after joining the services as Constable the petitioner mostly remained on leave and therefore,he was rightly discharged from service. I am afraid,this argument of learned counsel for the respondents cannot be accepted for the simple reason that the impugned order of discharge is not based upon his misconduct of remaining absent from duty without leave. The chart which is produced as Annex.R.1 shows that the petitioner remained on leave on several days on different grounds, but they were sanctioned by the authorities itself. It is true that from April 1, 1971 till Sept. 4, 1984 the petitioner remained absent from duty, but it was because of the becoming totally handicapped. Practically he has lost his both legs and, therefore, there is no question of his attending his duties as Constable. (6). It is to be noted that the non-petitioner No. 4 passed the impugned order of discharge on Sept. 28,1984 on the basis of Medical Report by which admittedly the petitioner was declared unfit as Constable by the Medical Board. Practically he has lost his both legs and, therefore, there is no question of his attending his duties as Constable. (6). It is to be noted that the non-petitioner No. 4 passed the impugned order of discharge on Sept. 28,1984 on the basis of Medical Report by which admittedly the petitioner was declared unfit as Constable by the Medical Board. The same Medical Board clearly stated that the petitioner was fully capable of doing clerical type job (desk work) since his upper limbs are normal. In that case it was the duty of the non-petitioner No. 4 to first absorb the petitioner on any other clerical post. The impugned order of discharge was passed in undue haste. The non-petitioner No. 4 has not applied his mind to the provisions of Rajasthan Employment of Physically Handicapped Rules, 1976. Rule 14 of the Rules applies to the persons already in employment of the Govt. who may suffer from physical handicap as defined under the Rules. Nature made the life of the petitioner miserable, but the approach of the authorities made it more miserable. Further the correspondence between the authorities clearly shows that higher authority infact wanted to help out the petitioner, but some one in the office had not allowed it. Therefore, order at Annex.2 and Annex.13 have to be set aside and they are set aside. (7). In the result, the discharge order is set aside. The petitioner is declared to be continue on the post of Constable till he is absorbed on the post of L.D.C. or any other suitable post. Till then the respondents shall pay to the petitioner the salary of Constable. The back wages shall be paid within three months from today.