Research › Search › Judgment

Jharkhand High Court · body

2015 DIGILAW 761 (JHR)

Girijanandan Singh v. State of Jharkhand

2015-07-06

RONGON MUKHOPADHYAY

body2015
Order : In this application, the petitioner has prayed for quashing the order as contained in Memo No. 2449 dated 7.9.2007, whereby and whereunder the petitioner has been compulsorily retired from the service on account of physical disability. 2. The petitioner had secured employment as a constable and after obtaining training joined at Bhagalpur as Reader to the Inspector of Police. Subsequently, the petitioner was promoted to the post of Assistant Sub Inspector of Police in the year 1980. In an encounter with the criminals, while the petitioner was posted as Assistant Sub Inspector of Police in Ghurabandha Police Station in the district of East Singhbhum, he received head injury and according to the opinion of doctor, in course of treatment, the petitioner was advised to consult an Eye Specialist. The petitioner got himself treated at various places and on account of his impaired vision, the disability of the petitioner was declared by the doctor as 75%. A Medical Board was constituted, which conducted a physical test of the petitioner on 28.01.2006 and ultimately it came to the conclusion that on account of his disability, the petitioner was unfit to discharge his duty in police force. Accordingly, on 19.06.2007, the petitioner was informed that from 31.08.2007 (A.N.), the petitioner shall be compulsorily retired. Consequent to the same, vide impugned order as contained in Memo No. 2449 dated 7.9.2007, the petitioner was ordered to be compulsorily retired with effect from 30.11.2007, which order is under challenge in the present writ application. 3. Heard Mr. Sanjay Kumar Pandey, learned counsel for the petitioner and Mr. Dhananjay Kumar Dubey, learned Senior Standing Counsel No. 1, for the respondents. 4. Learned counsel for the petitioner has submitted that the impugned order dated 7.9.2007 is de hors the provisions as contained in The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ( hereinafter referred to as the Disabilities Act). 5. It has been submitted that in terms of Section 47 of the Disabilities Act, the respondents could have shifted the petitioner to some other post with same scale of pay and service benefits instead of compulsorily retiring him from service. It has further been submitted that Section 47 of the Disabilities Act is squarely applicable in the case of the petitioner but the same has not been taken into consideration while passing the impugned order dated 7.9.2007. 6. Mr. It has further been submitted that Section 47 of the Disabilities Act is squarely applicable in the case of the petitioner but the same has not been taken into consideration while passing the impugned order dated 7.9.2007. 6. Mr. Dhananjay Kumar Dubey, learned Senior Standing Counsel No. 1, while controverting the contentions raised on behalf of the petitioner, has submitted that a Medical Board was constituted to look into the disabilities suffered by the petitioner and having found the petitioner unfit for police duty, the same was communicated to the Department, which ultimately led to the issuance of the impugned order dated 7.9.2007. It has further been submitted that the petitioner, who was an Assistant Sub Inspector of Police, when he was compulsorily retired, cannot claim reinstatement in service as he was a member of disciplined force. 7. In course of hearing of the present writ application, a query was made by the Court seeking clarification from learned counsel for the State as to whether Section 47 of the Disabilities Act was taken into consideration while issuing the impugned order dated 7.9.2007. Pursuant to the same, a supplementary counter affidavit has been filed by the respondents, wherein it has been clearly mentioned that the case of the petitioner had never been considered in light of Section 47 of the Disabilities Act. In such circumstances, this Court has to see whether the case of the petitioner falls under the purview of Section 47 of the Disabilities Act or not. 8. The meeting to launch the Asian and Pacific Decade of the Disabled Persons 1993-2002 convened by the Economic and Social Commission for Asian and Pacific Region, held at Beijing from 1st to 5th December, 1992 adopted the Proclamation on the Full Participation and Equality of People with Disabilities in the Asia and the Pacific region, wherein India is a signatory to the said Proclamation. In order to give effect to the Proclamation on the Full Participation and Equality of the People as well as with Disability in the Asia and Pacific Region, The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 was enacted, which came into force on 7.2.1996. 9. Section 47 of the Disabilities Act mentions about Nondiscrimination in Government employments and the same reads as follows:- “47. 9. Section 47 of the Disabilities Act mentions about Nondiscrimination in Government employments and the same reads as follows:- “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, 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 or 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. 10. Various letters appended by the petitioner do suggest to the fact that the petitioner after acquiring disability was not suitable for the post of Assistant Sub Inspector of Police. Option, which was available to the respondents in such circumstances, was either to shift the petitioner to some other post with the same pay scale and service benefits or he could have been kept in a supernumerary post until a suitable post was available or till he attained the age of superannuation, whichever was earlier. As the option denoted above has been clearly mentioned in Section 47 of the Disabilities Act and a person could not have been given benefit of Section 47 of the Disabilities Act in terms of its proviso, wherein the Government may by notification exempt any establishment from the provisions of Section 47. Nothing has been put forward by the respondents either in the counter affidavit or in the supplementary counter affidavit to suggest that the department, in which the petitioner was serving, was exempted by notification to implement the provisions of Section 47 of the Disabilities Act. In such circumstances, therefore, there was no other option for the authorities but to invoke Section 47 of the Disabilities Act, which, however, has not been taken into consideration, which fact has also been admitted by the respondents in their supplementary counter affidavit. 11. In such circumstances, therefore, there was no other option for the authorities but to invoke Section 47 of the Disabilities Act, which, however, has not been taken into consideration, which fact has also been admitted by the respondents in their supplementary counter affidavit. 11. Since the prohibition with respect to dispensing with the services of the petitioner has never been lifted by the appropriate Government as nothing has been suggested by the learned counsel for the State to conclude otherwise, it was incumbent upon the authorities to have considered Section 47 of the Disabilities Act before taking any final decision in the matter and having not done so, the impugned order as contained in Memo No. 2449 dated 7.9.2007 cannot be sustained and accordingly the same is hereby quashed and set aside. 12. The respondents authorities are directed to pass an order of reinstatement and thereafter make payment of all the consequential dues, which follows as a natural corollary to such order of reinstatement. If the petitioner has already attained the age of superannuation, the entire benefits accruing to the petitioner on account of the order of compulsory retirement being quashed and set aside by this Court shall be paid to him as has been indicated above. 13. Before parting with the judgment, it must be noted that the beneficial legislation meant for the persons with disabilities are required to be strictly adhered to as the present case is a glaring example of not taking recourse to Section 47 of the Disabilities Act, although the same had come into force in the year 1996 itself. 14. Let a copy of this order be handed over to Mr. Dhananjay Kumar Dubey, learned Senior Standing Counsel No. 1, in order to apprise the various government departments/institutions about the beneficial provision of the Act.