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2014 DIGILAW 909 (JHR)

Sailendra Singh v. Union of India

2014-08-28

D.N.PATEL, P.P.BHATT

body2014
JUDGMENT D.N. Patel, A.C.J. 1. When the matter is called out, the appellant in person has remained present and he has argued his case as party in person. He has come to this court in a wheelchair, as he is unable to walk. 2. The lawyers are on strike, hence, the counsel for Union of India, Mr. Mokhtar Khan, Assistant Solicitor General of India, has not remained present. 3. We have sent our Court jamadar to call Mr. Mokhtar Khan, Assistant Solicitor General of India, but, he has not come, therefore, we are proceeding ahead for final hearing of this matter. 4. Today, this matter is listed for final hearing. This matter was also not taken up for final hearing on yesterday. Yesterday also nobody was present when the matter was called out and with a view to give one more chance to the parties to the litigation, the matter was adjourned for today. 5. As the counsel for the respondents is absent, we have heard the party in person appellant at length and we have also kept the matter after the recess to give one more opportunity to the counsel for the respondents. 6. Nobody is appearing on behalf of the respondents after recess. 7. This Letters Patent Appeal has been preferred against the judgment and order passed by the learned Single Judge dated 12th November, 2008, in writ petition being W.P.(S) No.1248 of 2005, whereby, the petition preferred by this appellant has been dismissed. 8. The brief facts of the case : • The present appellant (original petitioner) was serving as a constable in Border Security Force. He joined the services in the year 1987. • Thereafter, he was deployed in Jammu & Kashmir. • During militant action, while he was deployed in Jammu & Kashmir, he sustained injuries by bullet and bomb on 10th September, 1992. • This appellant (original petitioner) has worked from 1992 till 1999 on the post of constable, but, the nature of work, which was assigned to him, was different. He was assigned the work of typist. Thus, this appellant continued from 1992 to 1999 as a constable and he was performing his duties of typist. • The Medical Board was constituted and he was declared unfit on 11th June, 1999 on the ground that there is 100 per cent disability with this appellant. He was assigned the work of typist. Thus, this appellant continued from 1992 to 1999 as a constable and he was performing his duties of typist. • The Medical Board was constituted and he was declared unfit on 11th June, 1999 on the ground that there is 100 per cent disability with this appellant. • The nature of the disability is a locomotive disability. He is unable to walk, but, the upper limb of the body and thorax is perfect and is working absolutely perfectly and appears to be normal and functioning perfectly. He is able to see perfectly, he can hear also perfectly and his both hands are working perfectly as there is no injury on the upper limb of the body and thorax, and therefore, the nature of the work, which was assigned after the accident/incident, was changed and from the outfield duties as a constable, this appellant was assigned duties at the office of Border Security Force as a Constable Typist. • There is no complaint by the respondents that he was inefficient during 1992 to 1999. There is no allegation of any misconduct against this appellant during this period. He performed his duties honestly, sincerely, diligently and to the satisfaction of the respondents and has not received any adverse remarks. No show cause has ever been given to this appellant about his poor performance in discharging his duties as constable typist during the period from 1992 to 1999. • Upon receipt of the Medical Board's report, in the year 1999, the services of this appellant was terminated and he was compulsorily retired from the service with effect from 17.2.2000. • This appellant had challenged his termination of service's order dated 17.2.2000 in the writ petition being C.W.J.C. No. 3058 of 2000 mainly on the basis of the protection given under Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation), Act, 1995 (for the sake of brevity, hereinafter referred to as the Act, 1995). • The said writ petition was disposed of by this Court vide order dated 4.3.2002 and the matter was remitted to the respondents with direction to determine the claim of the petitioner as per Section 47 of the Act, 1995. • The said writ petition was disposed of by this Court vide order dated 4.3.2002 and the matter was remitted to the respondents with direction to determine the claim of the petitioner as per Section 47 of the Act, 1995. • The respondent-authorities, thereafter, reconsidered and reexamined the claim of this appellant in view of the order passed by this Court in the writ petition and the order of compulsory retirement has been set aside by the respondents vide their order dated 22.5.2002. • Thereafter, this appellant was reinstated into the service of the Border Security Force with effect from 31.5.2002. • It further appears from the facts of the case that this appellant has sustained bullet and bomb injuries during the militant action while he was deployed in Jammu & Kashmir on 10th September, 1992. He was not paid any compensation by the respondents, though he was declared having 100 per cent disabled by the Medial Board constituted by the respondents. • For getting compensation, this appellant has to file the writ petition being W.P.(S) No. 4562 of 2004. • His writ for getting compensation has been disposed of by this order of this Court dated 15.9.2004. In this writ, bearing W.P.(S) No. 4562 of 2004, it was pointed out that when this appellant was in 94th Battalion of Border Security Force Company at Jammu & Kashmir along with some other persons, who were constables, they also sustained bullet and bomb injuries. They were also disable like this appellant, one person namely Daroga Yadav was unable to see, thus, there is a disability also attached with other persons. The names have been given in this writ petition and they all were paid compensation of Rs.2,98,000/-, Rs.4,16,316/- and Rs.5,37,637/- to C.G. Biruaconstable, Manoj Kartein-constable and Upendra Kumar Singh-constable, respectively, but the respondents had not paid any amount of compensation to this appellant, though this appellant was also 100 per cent disabled and therefore, the aforesaid writ was preferred. This Court gave direction to determine the compensation within a stipulated time vide order dated 15.9.2004. • Thereafter, by virtue of the order of this Court in W.P.(S) No.4562 of 2004, the Border Security Force passed an order for compensation to this appellant and the compensation was paid. This Court gave direction to determine the compensation within a stipulated time vide order dated 15.9.2004. • Thereafter, by virtue of the order of this Court in W.P.(S) No.4562 of 2004, the Border Security Force passed an order for compensation to this appellant and the compensation was paid. • It appears from the facts of the case that again the Border Security Force terminated the services of this appellant under Rule 25 of the Border Security Force Rules, 1969 vide their order dated 24.1.2005. • This second termination order has been challenged by this appellant in W.P.(S) No.1248 of 2005. • The writ petition preferred by this appellant (original petitioner) has been dismissed by the learned Single Judge vide order dated 12th November, 2008. • Against the dismissal of the writ petition i.e. W.P.(S) No.1248 of 2005, present Letters Patent Appeal being L.P.A. No. 415 of 2008 has been preferred before this Court. • In this Letters Patent Appeal, the Division Bench of this Court passed an order dated 25th November, 2008, not to evict this appellant from the residential premises (quarter No. 45/TII) which was in his occupation at district Hazaribagh in the State of Jharkhand till further orders. As observed by the Division Bench of this Court in the said order, the appellant was of the age of approximately 37 years and his age of superannuation in Border Security Force is 58 years and he sustained the injuries at the age of 28 years. • Vide order dated 4th December, 2008, the Division Bench, in this Letters Patent Appeal, passed a detailed interim order and has stayed the operation, implementation and execution, while admitting the letters patent appeal, of the order dated 24.1.2005, passed by the respondents of the termination of services of this appellant. Thus, this appellant has continued to perform/ discharge his duties as a Typist by virtue of the interim order passed by the Division Bench of this Court. • This order was challenged by the respondents by way of Special Leave Petition before the Hon'ble the Supreme Court of India being Special Leave Petition (Civil) No.23341/2009 (C.C. No.12335 of 2009) and this S.L.P. was dismissed after condoning the delay vide order dated 4.9.2009. Thus, the interim order passed by the Division Bench of this Court dated 4.12.2008 in this L.P.A. has attained its finality. 9. Thus, the interim order passed by the Division Bench of this Court dated 4.12.2008 in this L.P.A. has attained its finality. 9. The arguments canvassed by the party in person appellant : The party in person-appellant has submitted that the injuries were sustained by him when he was deployed at Jammu & Kashmir during militant action on 10th September, 1992. He was assigned another type of duty at the office of Border Security Force up to 1999 and thereafter, the services were terminated under Rule 25 of the Border Security Force Act, 1968 and Rules, 1969 and this order was under challenge in the writ petition being C.W.J.C. No.3058 of 2000. The matter was remitted to the respondents by this Court. The Border Security Force themselves quashed and set aside the order of termination of services, this is how this appellant continued into the service as constable Typist. Again in the year 2005, his services have been terminated overlooking to the provisions of Section 47 of the Act, 1995. Again, it was under challenge in the writ petition being W.P.(S) No. 1248 of 2005.The learned Single Judge has not appreciated the fact that exemption given to the Border Security Force from the applicability of the Section 47 of the Act, 1995 is with effect from 10th September, 2002, whereas, this appellant has sustained injuries while discharging his duties as a constable in Jammu & Kashmir during militant action on 10th September, 1992. It is further submitted by the party in person that the exemption given to the Border Security Force is much after the incident which has taken place in the year 1992. This aspect of the matter has not been properly appreciated by the learned Single Judge and hence, the judgment and order passed by the learned Single Judge deserves to be quashed and set aside. It is further submitted by the party in person that looking to the nature of the disability, there is a locomotive disability. It is true that he has to move in a wheelchair and today also he has come and attended the Court in a wheelchair, he has argued while sitting in wheelchair, but the upper limb of the body and thorax is perfect and is working absolutely perfectly and appears to be normal and functioning perfectly, namely, his eyesight, hearing capacity, thinking capacity and his hands are also working perfectly. Thus, in fact, this appellant can work perfectly as a Typist. This type of work was assigned to him after 1992 by the Border Security Force despite his disability, as upper limb organs are normal and from 1992 till today he is performing his duties as a constable-Typist accurately and to the satisfaction of the respondents. This appellant is performing his duties as constable Typist since last more than two decades. This aspect of the matter has also not been properly appreciated by the learned Single Judge. It is submitted by the party in person that looking to Section 47 of the Act, 1995, the respondents again terminated the services of this appellant merely because he has acquired disabilities nor can they reduce him in a rank, nor his pay scale can be reduced, even though, another type of duty is assigned to this appellant as per the first proviso to Section 47 of the Act, 1995. This aspect of the matter has also not been properly appreciated by the learned Single Judge. It is further submitted by the party in person-appellant that all the benefits / reliefs under Section 47 of the Act, 1995 may be extended to this appellant. 10. Nobody appears on behalf of the respondent-Union of India. Nobody appears for the Respondents. We have perused the whole records of the writ petition being W.P.(S) No.1248 of 2005 and the counter affidavits etc. in the writ petition and also the counter affidavit filed in the Letters Patent Appeal by the respondents. Reasons : 11. Having heard the party in person and also looking to the affidavit in reply and also looking to the record of the writ petition i.e. W.P.(S) No. 1248 of 2005, it appears that the present appellant was serving in Border Security Force as a constable from 12.3.1987, was deployed in the state of Jammu & Kashmir. While discharging his duties as constable, “during the course of his employment, and while discharging his duties during militant action, he sustained bullet and bomb injuries on 10th September, 1992. Thereafter, he was given treatment, but, now, there is a locomotive disability attached with this appellant. He is unable to walk. Thus, there is a locomotive permanent disability attached with this appellant. Today, he has argued out the case while sitting in wheelchair. Thereafter, he was given treatment, but, now, there is a locomotive disability attached with this appellant. He is unable to walk. Thus, there is a locomotive permanent disability attached with this appellant. Today, he has argued out the case while sitting in wheelchair. This appellant was continued in service of Border Security Force and was assigned different type of duty i.e. of Typist because his upper limb of the body and thorax are normal and are functioning properly. There is no disability, with his eyes, ears and he can see, he can hear with full efficiency, his hands are also working perfectly. There is no injury sustained on upper limb of the body, so that it can be said that he cannot work on any post. In fact, the Border Security Force authority was kind enough to continue his services and assigned the duties of Typist in the office of Border Security Force instead of out field work. 12. It is admitted that this appellant has continued to work with Border Security Force even after sustaining injuries in the year 1992 up to 1999. The Medical Board declared him unfit on 11.06.1999 and he was compelled to retire from service due to physical fitness on 10.11.1999 under the Border Security Force Act, 1968 and under Rule 25 of the Border Security Force Rules, 1969. For ready reference, Rule 25 of the Border Security Force Rules, 1969 reads as under : “25. Retirement of subordinate officers and enrolled persons on grounds of physical unfitness.-(1) Where a Commandant is satisfied that a Subedar-Major, an Inspector, a Sub-Inspector, an Assistant Sub-Inspector or an enrolled person is unable to perform his duties by reason of any physical disability, he may direct that the said Subedar-Major, the Inspector, the Sub-Inspector, the Assistant Sub-Inspector or the enrolled person, as the case may be, brought before a Medical Board.” 13. This action of the respondents-authority was challenged by this appellant in the writ petition i.e. C.W.J.C. No. 3058 of 2000 and this Court has passed an order dated 17.2.2000 and the matter was remitted to the Border Security Force authorities keeping in mind Section 47 of the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Section 47 of the Act, 1955, reads as under : “47. Section 47 of the Act, 1955, reads as under : “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 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.” (Emphasis supplied) 14. In pursuance of the aforesaid decision rendered by this Hon'ble Court, the wisdom prevailed upon the Border Security Force and the high ranking administrative officer of Border Security Force passed an order dated 21/22.5.2002, the said order reads as under : “In compliance of Hon'ble High Court of Jharkhand, at Ranchi order dated 04.03.2002 in the CWJC No.3058 /2000 filled by Ex-Constable Shailendra Singh of 44 Bn BSF attached with TC&S BSF Hazaribagh, the competent authority is pleased to set -aside the retirement order under Rule -25 of BSF Rules issued by DIG & Commandant TC&S Hazaribagh vide NO INV/SS-44 Bn/TC&S/99/14920-23 dated 10 Nov 1999 in respect of No.87002731 Ex-Constable Shailendra Singh of 44 Bn BSF attached with TC&S Hazaribagh.” (Emphasis supplied) 15. Thus, in pursuance of the aforesaid order dated 21/22.5.2002, the order of termination of the services of this appellant was set aside, thus, the order of compulsory retirement, which was passed on 17.2.2000, is no more in existence. This order was passed by the Border Security Force and the Union of India keeping in mind the provisions of the Act, 1995, especially, Section 47 thereof, which protects the employees of the Border Security Force, who acquire disability “during the course of their employment”. This appellant, as per Medical Board, has sustained 100 per cent disability. 16. This order was passed by the Border Security Force and the Union of India keeping in mind the provisions of the Act, 1995, especially, Section 47 thereof, which protects the employees of the Border Security Force, who acquire disability “during the course of their employment”. This appellant, as per Medical Board, has sustained 100 per cent disability. 16. Thus, this appellant has again continued as a constable-Typist in Border Security Force and he was reassigned the duties of Typist in the office of Border Security Force which he was performing from 1992 onwards. The appellant is discharging his duties honestly, sincerely, diligently and to the satisfaction of the respondents because nothing is brought on record by the Union of India that any show cause notice has been issued to this appellant nor there is any misconduct alleged by the respondents against this appellant nor there is any adverse confidential report made against this appellant. This work is continued by the appellant up to the year 2005. 17. It appears that the respondents have again terminated the services of this appellant in the year 2005, especially, with effect from 31.1.2005 under Rule 25 of the Border Security Force Rules, 1969. The said termination order reads as under :- “1. No.87002731 Constable Shalendra Singh of TC&S BSF Hazaribagh has been placed in medical category S1H1A5P1E1 with 100 % disability by BSF medical board held on 09 Nov 2004 and the board has considered him unfit for further service. 2. Consequent upon approval of findings of the medical board by competent authority and in pursuance to Pers Dte, FHQ letter No.14/52/01-Rectt/BSF/1830 -2130 dated 30 Jan'2003 and Pers Dte (Rectt Sec) FHQ letter No. 14/ 32/ 2002 – Rectt/ BSF/ 25960-62 of 31 Dec 2004, No.87002731 Constable Shalendra Singh is hereby retired from service on grounds of physical unfitness with effect from 31st Jan 2005 (AN) under rule 25 of BSF Rules 1969 with normal service pension as admissible under Rule 38(1) of CCS (Pension) Rules since capitalized value for his disability is being released to him.” 18. In the aforesaid order, again the said reason has been given that this appellant was physically unfit with effect from 31.1.2005. We are unable to understand that how this appellant has become again disable. There was already a locomotive disability from 1992. he was working as a constable-Typist. In the aforesaid order, again the said reason has been given that this appellant was physically unfit with effect from 31.1.2005. We are unable to understand that how this appellant has become again disable. There was already a locomotive disability from 1992. he was working as a constable-Typist. Once the services were terminated in February, 2000 by way of compulsory retirement, thereafter, in writ petition preferred by this appellant, an order was passed and the Border Security Force officers had again considered the claim of this appellant and had quashed and set aside their own order of termination as stated hereinabove and he was reinstated on the post of constable and was assigned the work of Typist, there cannot be again termination of service for the same reason. In fact, this aspect of the matter has not been properly appreciated by the learned Single Judge. 19. Counsel for the respondents has remained absent because of the strike of the Advocates, nonetheless, we have perused the counter affidavits filed in the writ petition as well as counter affidavit filed in L.P.A. In fact, there is no need to file any counter affidavit in the L.P.A. because it is an Appeal, nonetheless, to give fair opportunity to the Union of India, we have perused the records of the writ petition as well as this Letters Patent Appeal. The highest stand of the respondents appears to be that the Border Security Force is exempted from the applicability of Section 47 of the Act, 1955. This notification has been published on 10th September, 2002. Thus, it is a case of the respondent-Union of India, that – ^^eqyks ukLrh dqrks 'kk[kk that “where there is no root, there are no branches”, once, the Border Security Force is exempted from applicability of Section 47 of the Act, 1955, there is no need to give employment to the disable employees of the Border Security Force. This is the tone of the respondent Union of India, through out the writ petition and the Letters Patent Appeal. This contention has been accepted by the learned Single Judge while dismissing the writ petition preferred by this appellant, especially, looking to the paragraph nos.7 to 10 of the impugned order delivered by the learned Single Judge. This is the tone of the respondent Union of India, through out the writ petition and the Letters Patent Appeal. This contention has been accepted by the learned Single Judge while dismissing the writ petition preferred by this appellant, especially, looking to the paragraph nos.7 to 10 of the impugned order delivered by the learned Single Judge. The aforesaid notification of Union of India dated 10.9.2002 exempting the Border Security Force from applicability of Section 47 of the Act, 1995 is at Annexure-'A' to the counter affidavit filed by the respondents in the writ petition being W.P.(S) No.1248 of 2005. The said notification reads as under :- “MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT NOTIFICATION New Delhi, the 10th September, 2002 S.O.994(E)-In exercise of the powers conferred by proviso to Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1 of 1996) the Central Government having regard to the type of work carried on hereby exempt all categories of posts of “combatant personnel” only of the Central Para Military Forces (CPMFs), namely, Central Reserve Police Force (CRPF), Border Security Force (BSF), Indo-Tibetan Border Police (ITBP), Central Industrial Security Force (CISF) and Assam Rifles from the provisions of the said section. (No.16-39/2002-NI.I) SMT. RAJWANT SANDHU. Jt. Secy. ” 20. It appears that this amendment has been brought or the notification dated 10.9.2002 has been brought into effect from September, 2002, whereas, the incident of injuries sustained by this appellant during the militant action, is dated 10th September, 1992. Thus, before one decade, the incident had taken place. Thereafter, the appellant's services were also terminated on this very ground of disability in February, 2000. Thereafter, as stated hereinabove, the writ petition was preferred, the matter was remanded and the Border Security Force officers and high ranking administrative officers had quashed and set aside the February, 2005 order of termination of this appellant and this appellant was continued as a constable in Border Security Force and was assigned the work of Typist. This aspect of the matter has not been properly appreciated by the learned Single Judge deciding the writ petition. Section 47 of the Act, 1995, prohibits the Central Government from terminating the services of the disabled employees, if they are capable of doing other type of work. This aspect of the matter has not been properly appreciated by the learned Single Judge deciding the writ petition. Section 47 of the Act, 1995, prohibits the Central Government from terminating the services of the disabled employees, if they are capable of doing other type of work. In fact, this appellant has continued in the service from 1992 onwards, neither his services nor his salary can be reduced because of the disability and because of the fact that he is assigned another type of duty e.g., his salary as constable is Rs.100/and after sustaining injuries and getting disability, if he has been assigned the work of typist, he cannot be paid salary of Rs.90/, as per first proviso to Section 47 of the Act, 1995. This is a mandate of the law that a disable employee should be continued with the same pay scale and the same service benefits. 21. Looking to the facts of the present case, though this appellant is 100 per cent disable, there is a locomotive disability, but, he has argued nicely, accurately while sitting in a wheelchair, his upper limb of the body and the thorax is perfect, there is no disability of his eyes, ears and his hands are also working perfectly and he has worked as a Typist since last more than two decades in the office of the Border Security Force and there is no complaint about his work. There is no adverse entry in his service record placed in the counter affidavit filed by the respondents in the writ petition. Merely because a notification has been published dated 10.9.2002 by the respondents, exempting the B.S.F. and other paramilitary forces from the applicability of Section 47 of the Act, 1995, does not entitle the respondents to reopen all the previous cases and to terminate the services of this appellant, especially, when he has sustained the injuries and disabilities because of the injuries in the year 1992. Moreso, in the light of the earlier order in the writ petition the order of and termination of services of this appellant was quashed by the high ranking administrative officers of the Border Security Force on the basis of Section 47 of the Act, 1995. 22. Moreso, in the light of the earlier order in the writ petition the order of and termination of services of this appellant was quashed by the high ranking administrative officers of the Border Security Force on the basis of Section 47 of the Act, 1995. 22. Moreover, the party in person has rightly pointed out that in similarly situated case of one Sri Daroga Yadav, who was also posted at Jammu and Kashmir, serving in the same Border Security Force and he also sustained injuries while discharging his duties during the petrolling duty at Copwara in the state of Jammu & Kashmir. The said Daroga Yadav sustained 100 per cent disability of blindness, there were bullet injuries on his back, hand and both the eyes resulting into 100 per cent blindness, his services were also terminated with effect from 31.12.2004 under the same Rule 25 of the Border Security Force Rules, 1969. He has challenged this action in the W.P.(S) No. 237 of 2005 on the basis of Section 47 of the Act, 1995, and this Court passed the order dated 23/3/2006 (reported in 2006 (2) JCR 353 ) and by detailed speaking order, quashed and set aside the termination of service of Daroga Yadav. The Paragraph nos. 17 and 18 of the said order reads, as under : “17. In view of the above discussions and consideration, we have no other option but to hold the impugned order dated 31st December, 2004 (Annexure-4) as illegal and arbitrary. The second question is thus answered in affirmative i.e. in favour of the petitioner and against the Respondents. 18. in the result, the impugned order dated 31st December, 2004 is set aside. The consequential order, contained in letter No.16 dated 3rd January, 2005 (Annexure-5) directing the petitioner to vacate the residential quarters is also set aside. The petitioner is reinstated with all consequential benefits. He will remain in service till he attains the age of superannuation or any appropriate order is passed to that regard by the competent authority, in accordance with law, and after following the due procedure and hearing the petitioner. The Respondents will implement the decision and pay the consequential benefits to the petitioner within two months from the date of receipt /production of a copy of this order.” 23. The Respondents will implement the decision and pay the consequential benefits to the petitioner within two months from the date of receipt /production of a copy of this order.” 23. In view of the aforesaid decision that the said petitioner namely Daroga Yadav was reinstated in Border Security Force despite 100 per cent disability of his eye sight and is still working as such in the Border Security Force. Similarly, the party in person appellant has also pointed out about several other persons namely T. Kujur, who was also declared 100 per cent disable and still working in Border Security Force. This aspect of the matter has been stated in paragraph no.8 of the supplementary affidavit filed by this appellant in this Letters Patent Appeal. Similarly, there is one more constable of Border Security Force namely Sri Upendra Kumar, who also sustained injuries and is disable and he is still in service. He has referred in paragraph no.9 of the supplementary affidavit filed in this Letters Patent Appeal (now, this Upendra Kumar has expired). The party in person has submitted that still there are few more persons, though they sustained disabilities during their employment while serving as a constable in Border Security Force and they are continued in services. Similarly, one more person i.e. Arvind Dutt Abdali. We are not much analyzing this aspect of the matter because technically this fact should have been stated in the writ petition or in the rejoinder to the affidavit instead of in a supplementary affidavit to the L.P.A. This, in fact, a very good ground of discrimination and arbitrariness on the part of the respondent-authorities and whenever the arbitrariness is present, equality is absence. Apart from this ground of discrimination and breach of right of equality, as stated hereinabove, the incident of injuries sustained and disability attached with this appellant, is 10th September, 1992. Thereafter, this appellant has continued on the post of constable with another type of duty of Typist. The exemption is given to the Border Security Force from applicability of Section 47 of the Act, 1995, with effect from 10th September, 2002, after one decade. Therefore, merely because there is an exemption, now, year 2002 onwards, the services of this appellant cannot be terminated in the year 2005. This aspect of the matter has not been properly appreciated by the learned Single Judge. Therefore, merely because there is an exemption, now, year 2002 onwards, the services of this appellant cannot be terminated in the year 2005. This aspect of the matter has not been properly appreciated by the learned Single Judge. The old injuries or old disability cannot be matched with the new amendment or exemption given after one decade. The amendment is to be implemented with prospective effect and not with retrospective effect. 24. It should be kept in mind that the Union of India is an ideal employer. The employees, who were faithful in Para military forces, when they were deployed in Jammu & Kashmir and while discharging their duties as a Border Security Force personnel, when they are sustained bomb and bullet injuries and getting themselves disabled, to save this country, this type of reward cannot be given to them, especially, when this appellant is serving as a Typist after 1992 till today. More than two decades' period is over. On the contrary, the Union of India should protect this type of faithful employees to increase the morale of other employees of the paramilitary forces, so that at their station, while remaining away from their houses, they can discharge their duties keeping in mind that if they will sustain any injury and will become disable, their family will not be ruined and they will continue in the employment if they are capable of performing other type of duties in paramilitary forces. In the facts of the present case, this appellant is capable of discharging his duties as a Typist. This is not the case of respondent Union of India that he is disable to perform any type of duties, infact, there is only locomotive disability i.e. two legs. 25. For the ready reference, the said Disability Certificate dated 7th December, 1997, issued by the office of Civil Surgeon, Jalandhar, reads as under : “OFFICE OF THE CIVIL SURGEON JALANDHAR HANDICAP CERTIFICATE No. Steno /GM/95/1947 Dated : 7/12/97 This is to certify that Sh/ Smt/ Km: Shalinder Singh Aged 30 Yrs. (Own statement) Son/ Wife/ Daughter of Sh. Raja Ram Singh resident of BSF Base Hospital, F.H.Q. Jalandhar Cantt, whose signatures/ thumb impression is given below, has been examined by Dr. A.S.Saini Orthopaedic Surgeon Civil Hospital, Jalandhar. As per report he /she has been found to be orthopaedically disabled with complete disability of permanent nature assessed as 100 (Hundered) percentage. (Own statement) Son/ Wife/ Daughter of Sh. Raja Ram Singh resident of BSF Base Hospital, F.H.Q. Jalandhar Cantt, whose signatures/ thumb impression is given below, has been examined by Dr. A.S.Saini Orthopaedic Surgeon Civil Hospital, Jalandhar. As per report he /she has been found to be orthopaedically disabled with complete disability of permanent nature assessed as 100 (Hundered) percentage. N/S (Not for legal purpose) Description of disability Traumatic Paraplegia Sd/- Sd/- Civil Surgeon, Jalandhar Signature/thumb impression” (Emphasis supplied) 26. It appears that the 100 per cent disability referred, is only for orthopaedic disability. The appellant is unable to walk because of bullet and bomb injury sustained by him, but, the upper part of the body and the thorax are functioning perfectly and he is discharging his duties as a constable-Typist since last more than two decades. In Annexure1/A of the writ petition being W.P.(S) No.1248 of 2005, preferred by this appellant, the Certificate has been given by All India Institute of Medical Sciences (AIIMS), New Delhi, dated 30th October, 1996. The Certificate shows that this patient namely the present appellant to keep himself busy by doing desk work. The said Certificate reads as under : “ALL INDIA INSTITUTE OF MEDICAL SCIENCES ANSARI NAGAR NEW DELHI-110029 Date 30/10/96 TO WHOM IT MAY CONCERN Recommendation & requirement for a paraplegic : 1. Patient to keep himself busy by doing desk work – working place modification adviced for patient to sit on his wheelchair and move freely in his workplace. 2. Patient advised western type commode latrine & bathroom with geyser facility. 3. Patient advised ground floor quarter where wheel-chair can move easily. 4. Patient adviced medical check up twice weekly. 5 Patient advised attendent for physiotherapy atleast one hour in the morning and one hour in the evening. 6. Patient advised motorised tricycle. 7. Patient advised back rest. 8. Adviced weekly issue of arobag, adhesive plaster, talcum powder, condom, cotton roll, etc. Sdl/- (Senior Resident) Deptt. of PM&R” (Emphasis supplied) 27. 4. Patient adviced medical check up twice weekly. 5 Patient advised attendent for physiotherapy atleast one hour in the morning and one hour in the evening. 6. Patient advised motorised tricycle. 7. Patient advised back rest. 8. Adviced weekly issue of arobag, adhesive plaster, talcum powder, condom, cotton roll, etc. Sdl/- (Senior Resident) Deptt. of PM&R” (Emphasis supplied) 27. It appears that this appellant is capable of discharging other duties than the outfield duties and in fact, he is working and merely because the exemption is given to Border Security Force from applicability of Section 47 of the Act, 1995, from 10th September, 2002, the services of this appellant cannot be terminated in the year 2005 because of the fact that this appellant sustained injuries and disabilities on 10th September, 1992, and thereafter, his services were also terminated on this very ground. Thereafter, the writ petition was preferred and this Court had directed the respondents to reappreciate the claim of the appellant that the respondents have already taken a decision not to terminate the services of this appellant and reinstate him into the services again and again on the basis of the same disability, his services cannot be terminated. This aspect of the matter has not been properly appreciated by the learned Single Judge. It has been held by the Hon'ble Supreme Court of India in the case of Kunal Singh Vrs. Union of India and Another, reported in 2003 (4) SCC 524 , in Paragraph nos. 5 to 11, which reads as under : “5. According to the learned counsel for the appellant, his disability falls under Section 2(i) (v), namely, locomotor disability. What is meant by locomotor disability is stated in Section 2(o). There is no dispute that the Act applies to the establishment of the respondents and this establishment is not exempted under any notification issued under Section 47 of the Act. “Persons with disability” means a person suffering from not less than 40% of any disability as certified by a medical authority as per the definition given under Section 2(t). 6. Short question that arises for consideration in this appeal is whether the appellant is entitled to the benefit of Section 47 of the Act. 7. From the facts, which are not in dispute, it is clear that the disability suffered by the appellant is covered by Section 2(i)(v) read with Section 2(o) of the Act. 6. Short question that arises for consideration in this appeal is whether the appellant is entitled to the benefit of Section 47 of the Act. 7. From the facts, which are not in dispute, it is clear that the disability suffered by the appellant is covered by Section 2(i)(v) read with Section 2(o) of the Act. It is also not in dispute that this disability was acquired by the appellant during his service. Under Section 2 “disability” and “person with disability” are separately defined and they are distinct. We may also notice some provisions in Chapter VI of the Act relating to employment. Section 32 deals with identification of posts which can be reserved for persons with disabilities. Section 33 speaks of reservation of such percentage of vacancies not less than 3% for persons or class of persons with disability of which 1% each shall be reserved for persons suffering from: (i) blindness or low vision; (ii) hearing impairment ; and (iii) locomotor disability or cerebral palsy. Section 38 requires the appropriate Governments and local authorities to formulate schemes for ensuring employment of persons with disabilities. Section 47 is included in Chapter VIII of the Act. Chapter VI deals with employment relating to persons with disabilities including identification of posts and reservation of vacancies for such persons. Under this Chapter, reservation of vacancies for persons with disabilities is made for initial appointments. Section 47 in Chapter VIII deals with an employee of an establishment who acquires a disability during his service. 8. The need for a comprehensive legislation for safeguarding the rights of persons with disabilities and enabling them to enjoy equal opportunities and to help them to fully participate in national life was felt for a long time. To realize the objective that people with disabilities should have equal opportunities and keeping their hopes and aspirations in view a meeting called the “Meet to Launch the Asian and Pacific Decades of Disabled Persons” was held in Beijing in the first week of December, 1992 by the Asian and Pacific countries to ensure “full participation and equality of people with disabilities in the Asian and Pacific regions”. This meeting was held by the Economic and Social Commission for Asia and Pacific. A proclamation was adopted in the said meeting. India was a signatory to the said proclamation and agreed to give effect to the same. This meeting was held by the Economic and Social Commission for Asia and Pacific. A proclamation was adopted in the said meeting. India was a signatory to the said proclamation and agreed to give effect to the same. Pursuant thereto this Act was enacted, which came into force on 1-1-1996. The Act provides some sort of succour to the disabled persons. 9. Chapter VI of the Act deals with employment relating to persons with disabilities, who are yet to secure employment. Section 47, which falls in Chapter VIII, deals with an employee, who is already in service and acquires a disability during his service. It must be borne in mind that Section 2 of the Act has given distinct and different definitions of “disability” and “person with disability”. It is well settled that in the same enactment if two distinct definitions are given defining a word/ expression, they must be understood accordingly in terms of the definition. It must be remembered that a person does not acquire or suffer disability by choice. An employee, who acquires disability during his service, is sought to be protected under Section 47 of the Act specifically. Such employee, acquiring disability, if not protected, would not only suffer himself, but possibly all those who depend on him would also suffer. The very frame and contents of Section 47 clearly indicate its mandatory nature. The very opening part of the section reads “no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service”. The section further provides 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; if it is not possible to adjust the employee against any post he will be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. Added to this no promotion shall be denied to a person merely on the ground of his disability as is evident from sub-section (2) of Section 47. Section 47 contains a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires a disability during the service. Added to this no promotion shall be denied to a person merely on the ground of his disability as is evident from sub-section (2) of Section 47. Section 47 contains a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing a provision of a social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of Section 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service. 10. The argument of the learned counsel for the respondent on the basis of the definition given in Section 2(t) of the Act that benefit of Section 47 is not available to the appellant as he was suffered permanent invalidity cannot be accepted. Because, the appellant was an employee, who has acquired “disability” within the meaning of Section 2(i) of the Act and not a person with disability. 11. We have to notice on more aspect in relation to the appellant getting invalidity pension as per Rule 38 of the CCS Pension Rules. The Act is a special legislation dealing with persons with disabilities to provide equal opportunities, protection of rights and full participation to them. It being a special enactment, doctrine of generalia specialibus non derogant would apply. Hence Rule 38 of the Central civil Services (Pension) Rules cannot override Section 47 of the Act. Further, Section 72 of the Act also supports the case of the appellant, which reads: “72. Act to be in addition to and not in derogation by any other law.-The provisions of this Act, or the rules made thereunder shall be in addition to and not in derogation of any other law for the time being in force or any rules, order or any instructions issued thereunder, enacted or issued for the benefit of persons with disabilities.” (Emphasis supplied) 28. In view of the aforesaid fact and the decision rendered by the Hon'ble Supreme Court of India and also looking to the fact that the respondents have already taken a decision not to terminate the services of this appellant because of the locomotive disability by their order dated 22.5.2002 (Annexure4 to the W.P.(S) No. 1248 of 2005) and as this appellant is already working since last more than two decades as a constable-Typist with the Border Security Force, the exemption given to the Border Security Force by the notification dated 10th September, 2002, cannot be made operative with retrospective effect, hence, we, hereby, quash and set aside the judgment and order passed by the learned Single Judge dated 12.11.2008 in W.P.(S) No. 1248 of 2005. We also quash and set aside the order of termination of services of this appellant dated 24.1.2005. This appellant shall be paid by the respondents, the same pay-scale and the same service benefits which he was getting prior to the date of incidence i.e. 10th September, 1992, as per first proviso to Section 47 of the Act, 1995, and the respondents will also give the consequential benefits, like pay revision, etc. to the appellant. If any differential amount is to be paid to this appellant, the same will be calculated by the respondents within a period of twelve weeks from the date of receipt of the copy of the order of this Court and the same will be paid within a further period of four weeks thereafter. The copy of the calculation shall be given to this appellant by the respondents. So far as retention of the quarter is concerned, the interim order passed by this Court is made absolute and this appellant shall be entitled to the accommodation in accordance with rules applicable to this appellant. 29. This L.P.A. is allowed and disposed of and this appellant shall be permitted to discharge the duties which he is discharging as on today.