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Gujarat High Court · body

2010 DIGILAW 610 (GUJ)

S. K. Gohil v. State of Gujarat

2010-12-27

JAYANT PATEL

body2010
ORDER : Jayant Patel, J. Short facts of the case appears to be that the petitioner was working as the Armed Constable. The petitioner was appointed as Armed Police Constable on 5.2.1983 in State Reserve Police at Rajkot. On 12.8.1992 when he was on duty at the check post he was crushed down by the speeding vehicle and as a result he sustained injury on his left leg and ultimately the said left leg was required to be amputated. As per Medical Certificate there was 75% disability and he was given light work in the Wireless Section and he was doing the same since last about six years satisfactory. On 22.10.1999 he was examined by the Medical Board and was found fit for the table work or light work duty. It appears that thereafter vide letter dated 21.2.2000 the Board again asked for check up of the petitioner, however, according to the petitioner, the respondent No. 3 did not think it fit to send the petitioner for medical check up. The petitioner was discharging the work of light duty but respondent No. 3 on 17.1.2001 passed an order of retiring the petitioner from service on the ground that in the State Reserve Police there is no provision of light duty or table work and therefore he should be retired from service. It appears that thereafter on 12.7.2001 another order came to be passed whereby the petitioner was taken back in service on account of the order dated 9.4.2001 passed by Director General of Police and pursuant thereto the petitioner resumed his duties on 17.7.2001. In the order dated 12.7.2001 passed by Senapati (Commandant) of the State Reserve Police, Division 13, the period of his retirement as invalid from 17.1.2001 till the resumption of duty i.e. upto 16.7.2001 was to be treated as exceptional leave and hence the same has been treated by the department as exceptional leave. It is the case of the petitioner that though the salary of the said period was payable it was wrongly treated as extraordinary leave without pay. In view of such circumstances, the petitioner who initially had challenged the order of his retirement on the ground of invalidity has amended the petition and has prayed for direction to the respondent to treat the petitioner on duty from 17.1.2001 to 16.7.2001 and to pay salary of all consequential benefits with interest @ 12% p.a.. In view of such circumstances, the petitioner who initially had challenged the order of his retirement on the ground of invalidity has amended the petition and has prayed for direction to the respondent to treat the petitioner on duty from 17.1.2001 to 16.7.2001 and to pay salary of all consequential benefits with interest @ 12% p.a.. Hence, the petition before this Court. 2. Heard Mr. I.S. Supehia, learned Counsel for the petitioner and Ms. Mini Nair, learned Assistant Government Pleader for the respondents. 3. It is an undisputed position that the initial prayer made for challenging the order of retiring the petitioner from service on the ground of invalidity would no more survive, since the petitioner has been taken back in service from 17.7.2001 and therefore the only aspect to be considered in the present petition is his entitlement for the salary during the period from 17.1.2001 to 16.7.2001 and continuity in service for consequential benefits. 4. It is an undisputed position that the petitioner in a capacity as Constable while in service has sustained injury which resulted into amputation of left leg. The persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereafter referred to as the 'Act'), has come into force on 7.2.1996 which inter alia provides for the disability as defined under section 2(h)(i) and it includes "locomotor disability". The employer is defined as Head of the Department of the Government or such other Authority. "Locomotor disability" is also defined under section 2(o) which reads as under : "(o) locomotor disability - means disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy;" Section 47 of the said Act which would be relevant for the purpose of the present petition reads as under: "47. Non-discrimination in Government employment. 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 suitable 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 establishment from the provisions of this section". 5. The aforesaid section makes it clear that no discrimination shall be made in the Government employment to any employee who acquires disability during his service save and except that after acquiring the disability if he is not suitable for the post which he is holding he can be shifted to some other post with the same pay scale and service benefits. Therefore, his pay scale and the service benefits are required to be protected even if he is shifted to some other post, which in the present case was light duty. The aforesaid section of the Act further provides that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post and if such post does not exist it may be created for such purpose. Therefore, it is unequivocal that pay scale and the service benefits to such employee who has acquired the disability while in service are required to be protected. Under these circumstances, neither the petitioner could be made to retire on the ground of his invalidity nor his pay scale or the service benefits could be adversely affected on account of the locomotor disability sustained by the petitioner. 6. Under these circumstances, neither the petitioner could be made to retire on the ground of his invalidity nor his pay scale or the service benefits could be adversely affected on account of the locomotor disability sustained by the petitioner. 6. As in the present case, the order for retiring the petitioner on the ground of invalidity does not survive, the legality and validity of the said order is not required to be examined, but by subsequent order of reinstating the petitioner in service by withdrawal of earlier order, the petitioner has joined the duty on 17.7.2001 the respondent would be required to pay salary and other consequential benefits to the petitioner from 17.1.2001 to 16.7.2001 of course by treating the service of the petitioner as continuous during the said period with all future benefits. 7. Learned Assistant Government Pleader has not been able to show as to why the benefits of the aforesaid Act and more particularly, section 47 should not be made available to the petitioner who has sustained injury and thereafter acquired disability while in service. No material has been produced on record to show that the State Reserve Police or the said force of the State Government is granted exemption from the applicability of the said Central Act. An attempt was made by learned Assistant Government Pleader that as per Bombay Police Act such could be permitted. In my view, cannot be countenanced for the simple reason that after the enactment of the aforesaid Act protection would be available under the Central Act to all employees save and except the exemption is granted from the aforesaid Act. Therefore, once there is a mandate of the Act enacted by the Parliament, same is required to be respected and observed by the State Government. It is hardly required to be stated that the Act is beneficial legislation for the benefit of the persons suffering disability either from the birth or subsequently thereafter while on duty and therefore there is no reason for not to apply and extend the benefits to the petitioner who has sustained injury while on duty and subsequently acquired disability on account of the said injury which is covered by the provisions of the Act. 7A. 7A. In view of the aforesaid observations and discussions the action of the respondent of treating the period from 17.1.2001 to 16.7.2001 as extraordinary leave without pay in the service of the petitioner, is declared as illegal to the extent that it cannot curtail the pay scale and service benefits available to the petitioner during the said period. It is further observed and directed that the petitioner shall be entitled to the pay scale of the post in question for the period from 17.1.2001 to 16.7.2001 with all consequential service benefits including continuity of service in future. As the amount has not bee paid to the petitioner though the petitioner was legitimately entitled for the same, such amount shall be paid of the salary minus the amount if any paid towards pension during the said period, but with interest @ 8% p.a. from 16.7.2001 till the amount is actually paid. The calculation of the said amount shall be completed within four weeks from the receipt of the order of this Court and the consequential disbursement shall be made within eight weeks thereafter to the petitioner. 8. The petition is partly allowed to the aforesaid extent. Rule made absolute with no order as to costs. Order accordingly.