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2003 DIGILAW 337 (JK)

Sat Pal Singh v. Union Of India

2003-10-31

PERMOD KOHLI

body2003
Petitioner has approached this Court for a direction not to board out him on account of his medical category and to provide shelter appointment. 2. The medical facts are that the petitioner was recruited as a Constable GD on 17.6.1978 after undergoing necessary training. He was promoted as Lance Naik and thereafter as Head Constable. He remained posted at various places in the Country including the State of J&K. While he was posted in 96 Bn.BSF in District Rajouri, he met with a vehicular accident on 24.4.1997 while travelling in vehicle No. WB-23134 driven by one Madan Lal, Head Constable. He suffered multiple injuries in the said accident. After being treated at Udhampur and BSF Hospital, Jammu, he was referred to Medical Board in District Hospital, Rajouri. The Medical Board assesed the disability at 80%. According to petitioner, his case has been recommmended for boarding out fromm BSF service on ground of disability suffered by him while performing bonafide government duty. Accordingly he has sought protection under Article 21 of the Constitution of India and the provisions of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1985. 3. Mrs. Surinder Kour, learned counsel appearing for the petitioner has relied upon judgment of the Apex Court reported in 2003 (2) Supreme 102, titled "Kunal Singh v. Union of India & another", and urged that in view of the provisions of aforesaid Act, which is applicable to the State of J&K, petitioner cannot be boarded out from service and is required to be given shelter appointment i.e.some appointment where petitioner could discharge his duties irrespective of his disability. 4. On being put to notice, respondent-UOI has filed its reply admitting the averments mmade in the writ petition as regard the service of petitioner and occurence of the accident. The cause of disability suffered by the petitioner has also not been disputed. In respect to claim of the petitioner regarding his boarding out, it is stated that so far no order boarding out the petitioner has been passed and the writ petition is premature. It is further stated that petitioner has been paid compensation in lieu of disability amounting to Rs. 80,545/- in May 2001, which amount he has already received as per entry made in his SR at page 3. 5. It is further stated that petitioner has been paid compensation in lieu of disability amounting to Rs. 80,545/- in May 2001, which amount he has already received as per entry made in his SR at page 3. 5. Regarding application of provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1985, it is stated that the Ministry of Social Justice and Empowerment vide Notification No. SO 994(E) and SO 995(E) has exempted all the Central Para Military Forces including the BSF from the purview of Sections 33 and 47 of the aforesaid Act keeping in view the type of work to be carried on by the members of the force. It is also mentioned in the reply that the department is not bound to provide any shelter appointment to the petitioner who has been paid compensation and is also entitled to disability pension as provided under the rules. According to respondents, petitioner, who has suffered 80% disability, is unable to perform the duty in the force. 6. I have heard learned counsel for the parties. As far as facts are concerned, the same are not disputed.The only question that needs examination is application of Persons with Disabilities (Equal Opportunities, protection of Rights and Full participation) Act, 1985 and the right of the petitioner to claim benefit under the same. Relevant Sections of the aforesaid Act are Sections 2(i), 2(t) and 47 and the same are reproduced hereunder: "2(i) Disability means : i. Blindness; ii low vision; iii eprosy-cured; iv. hearing impairment; v. locomotor disability; vi. mental retardation; vii mental illness. 2(t) "Person with disability" means a person suffering from not less than forty percent of any disability as certified by a medical authority." 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 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 sutable post is available or he attains the age of superannuation, whichever is earlier. 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 sutable post is available 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 establishement from the provisions of this section." 7. Though the disability suffered by the petitioner fall within the definition as provided under the Act and he is entitled to benefit of Section 47. However, proviso to Sub Section 3 of Section 47 empowers the appropriate Government to exempt any such establishment from the provisions of this Section if the appropriate Government having regard to the type of work carried out in any establishment may be necessary notification notify. Mr.Nanda has specifically brought my attention to Notification No. SO 994(E) and SO 995(E) issued by the Government of India exempting the BSF from the operation of Sections 33 and 47 of the Act. Copies of these notifications have been placed on record. Mrs. Kour has vehemently argued that in view of the judgment of Apex Court reported in Kunal Singhs case, the petitioner is entitled for adjustment in service under shelter appointment. 8. I have carefully gone through the judgment referred to above. In the aforesaid case, Honble Supreme Court has in clear terms considered the application of provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1985 and keeping in view the provisions of Sections 47 and Section 2(t), it has been held that the petitioner in the said case, who was serving in Special Service Bureau (SSB), is entitled to the benefit of Section 47. Since the provisions of Section 47 has not been made applicable to BSF Force, the ratio of aforesaid judgment will have no application to the present case and consequently petitioner cannot seek any benefit on the basis of aforesaid judgment. Mrs. Since the provisions of Section 47 has not been made applicable to BSF Force, the ratio of aforesaid judgment will have no application to the present case and consequently petitioner cannot seek any benefit on the basis of aforesaid judgment. Mrs. Surinder Kour has also relied upon another judgment reported in AIR 1995 SC 519, titled "Kumar Chandla v. State of Haryana & others", wherein Honble Supreme Court while considering the question of promotion of LDC to the post of UDC of a person, who suffered disability, directed the promotion of petitioner therein without passing the typing test. The direction was issued keeping in view Article 21 of the Constitution of India and the facts of that case, as it apparent from the following paragraph : "Article 21 protects the right to livelihood as an integral facet of right to life. When an employee is afflicted with unfortunate disease due to which, when he is unable to perform the duties of the posts he was holding, the employer must make every endeavour to adjust him in a post in which the employee would be suitable to discharge the duties as a Carrier Attendant is unjust. Since he is a matriculate, he is eligible for the post of L.D.C. For L.D.C., apart from matriculation, passing in typing test either in Hindi or English at the speed of 15/30 words per minute is necessary. For a Clerk, typing generally is not a must. In view of the facts and circumstances of this case, we direct the respondent Board to relax his passing of typing test and to appoint him as a L.D.C. Admittedly on the date when he had unfortunate operation, he was drawing the salary in the pay scale of Rs. 1400-3200. Necessarily, therefore, his last drawn pay has to be protected. Since he has been rehabilitated in the post of L.D.C. we direct the respondent to appoint him to the post of L.D.C. protecting his scale of pay of Rs. 1400-3200 and direct to pay all the arrears of salary." This judgment is also not relevant for the purposes of this case. 9. From the above facts and position of law, no direction can be issued to respondents not to board out the petitioner on medocal grounds or to give him shelter appointment. This is particularly in view of the fact that compensation of Rs. 9. From the above facts and position of law, no direction can be issued to respondents not to board out the petitioner on medocal grounds or to give him shelter appointment. This is particularly in view of the fact that compensation of Rs. 80,545/has already been paid and received by the petitioner and he will also be entitled to disability pension in accordance with rules as is admitted by the respondents in the reply. This petition is accordingly dismissed.