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Uttarakhand High Court · body

2013 DIGILAW 809 (UTT)

MOHINDER SINGH v. UNION OF INDIA

2013-12-19

ALOK SINGH

body2013
JUDGMENT Hon’ble Alok Singh, J. (Oral) Petitioner was initially appointed as Pioneer with GREF on 07.04.1986 and while working as such, he was re-appointed on the post of DVR MT (Ord) with inter se seniority with effect from 25.09.1991. He joined his duties on 01.01.1992. While serving in RCC GREF, he suffered injury on his left eye, as a result of which, his left eye was removed and an artificial eye was fitted in lieu thereof. 2. Undisputedly, petitioner was permitted to drive the vehicle despite the fact that he suffered eye injury while on duty. As per Recruitment and Promotion Rules, 1982, a person holding post of DVR MT (Ord) is entitled for promotion on the post of MT DVR Grade II on completion of 9 years of service subject to qualifying the trade test being conducted by concerned Unit. Similarly, after completion of 6 years of service on the post of MT DVR Grade II, an employee shall be awarded promotion to the post of MT DVR Grade I and thereafter, on completion of 3 years of service on the post of MT DVR Grade I, shall be entitled for special grade. 3. Undisputedly, petitioner completed 9 years of service on the post of DVR MT (Ord) on 01.01.2001, therefore, petitioner was required to be considered for promotion subject to qualifying his trade test, however, he was not given chance to face such trade test on account of injury suffered by him. However, petitioner was granted promotion to the post of MT DVR Grade II vide order dated 12.09.2011 (Annexure No. 7 to the writ petition) with effect from 13.06.2011, thereafter, petitioner made repeated requests to the respondents to grant him promotion from the back date, after completion of 9 years of service as DVR MT (Ord) to the post of MT DVR Grade II with effect from 01.01.2001 and to grant him subsequent promotions. However, no needful was done compelling the petitioner to get issued a legal notice dated 20.05.2010, which was duly received by respondent authorities. Thereafter, petitioner filed WPSS No. 575 of 2012 before this Court wherein Coordinate Bench of this Court vide order dated 04.05.2012 directed the respondent authorities to take appropriate decision on the representation of the petitioner asking for promotion with effect from 01.01.2001. Thereafter, petitioner filed WPSS No. 575 of 2012 before this Court wherein Coordinate Bench of this Court vide order dated 04.05.2012 directed the respondent authorities to take appropriate decision on the representation of the petitioner asking for promotion with effect from 01.01.2001. Petitioner moved representation dated 28.05.2012 asking the respondent authorities to grant him promotion on the post of MT DVR Grade II with effect from 01.01.2001 and further to grant him promotion with effect from 01.01.2007 on the post of MT DVR Grade I and thereafter, to grant him Special Grade with effect from 01.01.2010 and to consider his case fro transfer BCA area as per seniority and to pay all the arrears along with 18% interest per annum. 4. Representation, so moved by the petitioner, was dismissed vide impugned order dated 09.08.2012. Feeling aggrieved, petitioner has approached this Court invoking writ jurisdiction under Article 226 of the Constitution of India. 5. As per impugned order rejecting the representation of the petitioner, case of the petitioner could not be considered for promotion, as he failed to appear in the trade test right from 2001 to 2010. However, fact remains that petitioner in so many words, asserted that he was not allowed to appear in the trade test because of injury on his left eye. There is no denial to this effect. Moreover, there is no material on record to suggest that petitioner was asked to face trade test any time after 2001 to 2010 and petitioner refused to face the trade test. Therefore, I hold that petitioner was not allowed to face the trade test by the Authorities because of injury suffered by him. 6. Section 47 of the Persons with disabilities (equal opportunities protection of rights and full participation) act 1955 reads as under: “47. Non discrimination in Government employments. 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 supernumeracy post until a suitable post is available or he attains the age of superannuation, whichever is earlier. 2. 2. No promotion shall he 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 he specified in such notification, exempt any establishment from the provisions of this section.” 7. Having read Section 47 of the Act, in the humble opinion of this Court, if an employee, after acquiring disability is not suitable for the post he is holding, he may be shifted to some other post with the same pay scale and service benefit and promotion shall not be denied to such employee merely on the ground of his disability unless of course, provisions of Section 47 are exempted by Government Notification. 8. Undisputedly, petitioner was never discharged on account of medical disability and he is still working with the respondents. There is nothing on record to suggest that provisions of Section 47 were ever exempted by Government Notification. Therefore, as per the mandate of Section 47, petitioner cannot be deprived of all service benefits including promotion. In view of the fact that petitioner was not allowed to face the trade test for no fault of him and was allowed to face trade test only in 2011, in which petitioner was held successful and was awarded promotion too on the post of MT DVR Grade II with effect from 12.09.2011, while in normal circumstances, petitioner ought to have been awarded promotion on MT DVR Grade II with effect from 2001 on completion of 9 years of service. Therefore, petitioner is entitled for all the promotional pay scales, for which he was otherwise entitled, therefore, petition is allowed. Respondents are directed to grant all the promotions to the petitioner notionally and release the arrears of pay scale to the petitioner with effect from 01.01.2001 on the post of DVR MT Grade II; with effect from 01.01.2007 on the post of DVR MT Grade I; and with effect from 01.01.2010 of Special Grade within 90 days from today, failing which petitioner shall be paid interest @ 18% per annum on the all the arrears from the date, petitioner was held eligible on the promotional posts.