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2012 DIGILAW 651 (PAT)

Ram Bilash Paswan v. State of Bihar

2012-04-20

V.N.SINHA

body2012
ORDER Heard learned counsel for the petitioner and the State. 2. At the relevant time petitioner served as Motor Vehicle Driver in the Banka Collectorate. He has filed this writ petition questioning the validity of the order bearing Memo No. 53 dated 30.1.2003 passed by the District Magistrate, Banka, (Annexure-4), whereunder petitioner has been compulsorily retired in terms of Rule 74 (A) of the Bihar Service Code with effect from 31.1.2003, in the light of the report of the Medical Board that he is suffering from eye disease and his eye-sight is such that he cannot be entrusted with the job of driving a motor vehicle. It is submitted on behalf of the petitioner that he developed eye disease leading to loss of vision while discharging the duties as driver and in appreciation of such fact as also the provision contained in Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 which prohibits dispensing with or reduction in rank to an employee who acquires disability during service tenure, the impugned order ought not to have been passed directing compulsory retirement of the petitioner. 3. Counsel for the State has opposed the submission. He submits that when loss of vision on the part of the petitioner was noticed, option was given to the petitioner to serve as a Class-IV employee but petitioner having refused such offer the authorities had no option but to compulsorily superannuate petitioner relying on Rule 74 (A) of the Bihar Service Code. 4. The mandate of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 is clear that no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service and as the petitioner suffered loss of vision while serving as Driver as per first proviso to Section 47 of the Act, he should have been shifted to some other post with the same pay-scale and service benefits. 5. 5. Having appreciated the contents of Section 47 of the Act and its first proviso, I am of the view that the impugned order dated 30.1.2003, Annexure-4 compulsorily superannuating the petitioner has been passed ignoring Section 47 of the Act which is, accordingly, quashed with direction to Collector, Banka to continue with the employment of the petitioner on any other Class-III post until he attains the age of superannuation. It goes without saying that petitioner shall be entitled for entire arrears of salary of the post of Driver from the date of the impugned order till the date of his superannuation or the date of this order, whichever is earlier, which should be paid to him as early as possible, in any case within a period of two months from the date of receipt/production of a copy of this order before the Collector, Banka. 6. The writ petition is, accordingly, allowed.