Research › Search › Judgment

J&K High Court · body

2014 DIGILAW 156 (JK)

Moti Lal v. Union Of India

2014-04-03

M.M.Kumar, MUZAFFAR HUSSAIN ATTAR

body2014
Muzaffar Hussain Attar, J. 1. Appellant, a Constable in the Central Industrial Security Force (CISF), was boarded out from service in terms of order dated 06.02.2002. He was granted invalid pension with effect from 06.06.2002. Feeling aggrieved of the order of boarding out dated 06.02.2002 and strucking-off his name from rolls of force by order dated 06.06.2002, appellant-writ petitioner challenged the same in SWP No. 39/2003. The said writ petition was dismissed by the learned Writ Court vide order dated 26.08.2013. 2. It is this order which is called in question in this Letters Patent Appeal (LPA). 3. In view of the issue raised in the pleadings and submissions made at the Bar by the learned counsel for the appellant-writ petitioner, this Court on 17.02.2014 directed the Chief Medical Officer, Jammu to examine the appellant afresh to find out whether he suffers from Bilateral Osteoarthritis. The Medical Board was directed to examine the appellant without being prejudiced by any observation made either in order dated 17.02.2014 or the certificate dated 03.04.2002. 4. Medical Board, Government Medical College and Associated Hospitals, Jammu has filed certificate dated 11.03.2014, wherein it has been stated that on examination of the appellant, it was found that he was able to sit down on the floor, sit cross legged, squat and walk without any discomfort. It is also certified that the appellant did not have any swelling in either knees and had full range of movements. On X-ray examination, it was reported to be a case of early Osteoarthritis changes in both knees. It has been also certified that he is fit to do any routine activities of the knees and does not seem to be handicapped. He is fit to do any job. Learned counsel for the writ petitioner-appellant submitted that at the time the appellant was working with the respondents, Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short the Act of 1995) was applicable to the CISF. Learned counsel submitted that vide notification S. O. 995 (E) dated 10.09.2002, amongst others, the CISF has been exempted from the operation of Section 47 of the Act of 1995. Learned counsel submitted that learned Writ Court has recorded a finding that aforesaid notification would not affect the rights of the writ petitioner-appellant as he was boarded out of the service on 06.02.2002. Learned counsel submitted that learned Writ Court has recorded a finding that aforesaid notification would not affect the rights of the writ petitioner-appellant as he was boarded out of the service on 06.02.2002. Learned counsel submitted that after recording such a finding the learned writ Court ought not to have dismissed the writ petition, but appropriate relief should have been granted to the appellant. 5. Learned counsel for the respondents submitted that the certificate issued by the Medical Board in pursuance of the orders of this Court does show early Osteoarthritis changes in both knees. Learned counsel submitted that appellant has been rightly boarded out of service on medical grounds. 6. The parliament enacted the Act of 1995 in view of the adoption of proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific Region held at Beijing on 1st to 5th December, 1992. The foundation and purpose underlying the Act of 1995 is of significance importance to the persons who suffer from various kinds of disabilities. This class of people cannot be treated as living fossils as well as out castes. There are human beings, who require special attention, care and proper placement in the society. This class of people cannot be discarded but has to be absorbed in the society. Their capacities are to be utilized for the overall benefit of the society. The laudable purpose sought to be achieved under the Act of 1995 is to ensure that a person, who is in employment, if, during his service because of some ailment, cannot perform the job, which was assigned to him, then he has to be accommodated in another job, so as to allow him to perform his duties and earn his livelihood to sustain himself and his family members. Section 47 of the Act of 1995 is possessed of heroic heeling touch and reflects the highest standard of human values. Section 47 of the Act of 1995 is taken note of: 47. Section 47 of the Act of 1995 is possessed of heroic heeling touch and reflects the highest standard of human values. Section 47 of the Act of 1995 is taken note of: 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 supernumerary post until a suitable post is available or he attains the age of superannuation, which 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." 7. Admittedly, at the time the writ petitioner-appellant was boarded out from the service on medical grounds Notification dated 10.09.2002 was not issued and provisions of Section 47 of the Act of 1995 were applicable to the CISF. In view of the mandate contained in Section 47 of the Act of 1995, the writ petitioner-appellant was to be shifted to some other post having same pay scale and service benefits and in case, it was not possible to adjust the writ petitioner-appellant against any post, then the writ petitioner-appellant was to be kept on a supernumerary post until a suitable post would become available or he would attain the age of superannuation, whichever would be earlier. 8. Learned writ Court has recorded a finding in the impugned judgment that Notification dated 10th September, 2002 is not attracted to the case of the writ petitioner-appellant and we uphold the said finding of the learned Writ Court. This finding has not been challenged by the respondents, thus, it is accepted that the appellant is entitled to get the benefits flowing from Section 47 of the Act of 1995. Section 47 of the Act of 1995 has the attributes of "Saint", who has the immense natural powers to cure all kinds of diseases. This finding has not been challenged by the respondents, thus, it is accepted that the appellant is entitled to get the benefits flowing from Section 47 of the Act of 1995. Section 47 of the Act of 1995 has the attributes of "Saint", who has the immense natural powers to cure all kinds of diseases. Section 47 of Act of 1995 is enacted for the benefit of society and the same cannot be allowed to be taken away at the whim of any authority. Section 47 of the Act of 1995 has to be implemented with full vigor and force. 9. For our afore-recorded reasons, we allow this appeal and set aside the judgment dated 26.08.2013 passed by the learned Writ court. Consequently, orders dated 06.02.2002 and 06.06.2002 passed by the respondents are set aside. Writ petitioner-appellant shall stand reinstated into the service. Respondents are directed to adjust the appellant on a post in accordance with the mandate contained in Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The necessary orders in this regard shall be passed within a period of two weeks' from the date a copy of this order is served upon them.