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Tripura High Court · body

2016 DIGILAW 107 (TRI)

Gouri Das v. State of Tripura

2016-04-18

S.C.DAS

body2016
JUDGMENT : The petitioner is a physically challenged person suffering from “disarticulation of elbow” certified as loco motor disability of 75% and the District Disability Board, Kailashahar issued Certificate No.306/34/OH/11, dated 18.10.2011 (Annexure- P/1 to the writ petition) in her name. She belonged to Scheduled Caste community. 2. She joined service as Social Education Organizer under the Directorate of Social Welfare and Social Education (for short, SW & SE) on 28.05.1979 as a contingent worker and she was regularized as a Junior Social Education Organizer on 01.08.1982 and was posted at the office of District Inspectorate of Social Education (DISE), Kumarghat. By issuing memo dated 30.03.2011 the respondent No.2 promoted the petitioner along with others to the post of Supervisor (ICDS), Group-C, Non-Gazetted post and the petitioner was posted at Gournagar ICDS Project, Kailashahar. Obeying the order of promotion and posting, the petitioner joined in the promotional post at Gournagar ICDS Project under the Child Development Project Officer (for short, CDPO), Gournagar. Since she was a physically challenged person, she was facing difficulty to undertake journey from her place of residence at Kumarghat to Gournagar which was about 30 K.M. away and therefore, she made several representations to the respondents for her transfer to Kumarghat in the post of Supervisor (ICDS) but her repeated representations were not considered and ultimately being frustrated she made prayer surrendering the promotion with a request to transfer her in her original post at Kumarghat. That letter of the petitioner surrendering the promotion, dated 29.07.2011, has been annexed as Annexure P/4 (colly) to the writ petition. After her repeated prayer of surrender of the promotion, the Director, SW & SE by issuing memo dated 11.11.2011 (Annexure P/6 to the writ petition) reverted her to the post of Junior Social Education Organizer and posted her at Kumarghat in her original place of posting. 2.1 By issuing memo dated 15.11.2012 (Annexure P/7 to the writ petition), respondent No.2 promoted total 58 nos. of Jr. Social Education Organizers to the post of Supervisor (ICDS), Group-C, Non-Gazetted. But the petitioner though was eligible for promotion was not promoted. 2.1 By issuing memo dated 15.11.2012 (Annexure P/7 to the writ petition), respondent No.2 promoted total 58 nos. of Jr. Social Education Organizers to the post of Supervisor (ICDS), Group-C, Non-Gazetted. But the petitioner though was eligible for promotion was not promoted. It is the case of the petitioner that one Archana Das was also promoted with the petitioner by memo dated 30.03.2011 and that Archana Das did not accept the promotion but again her promotion was considered by memo dated 15.11.2012 whereas the petitioner’s promotion was not considered at the time of promoting 58 nos. Jr. Social Education Organizers by memo dated 15.11.2012 and thereby deprived her from her legitimate promotion. 2.2 The petitioner contended that she was entitled to enjoy the benefits of promotion as per memo dated 30.03.2011 (Annexure P/2 to the writ petition) and that under compelling situation she surrendered her promotion when her representation for transfer was not considered by her authority and that the respondents has violated the provisions of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act,1995 (hereinafter mentioned as PWD Act, 1995). She prayed for directing the respondents to give her the benefits of promotion in the post of Supervisor (ICDS) w.e.f. the date of her promotion given by order dated 30.03.2011 and also prayed for quashing memo dated 11.11.2011 (Annexure-P/6 to the writ petition) under which her surrender of promotion was accepted. 3. Respondents, inter alia, contended that the petitioner was posted at Gournagar ICDS Project on promotion. She accepted order of promotion and posting and joined the post at Gournagar. On the basis of her prayer, surrender of promotion was accepted and she was reverted to the post of Junior Social Education Organizer and posted at Kumarghat. As per service record her permanent residence was at village Boulapasa at Kailashahar, North Tripura and it was not at Kumarghat. So, her plea that she should be transferred to her permanent place of residence at Kumarghat was not tenable. It is also contended by the respondents that Archana Das was also promoted with the petitioner by memo dated 30.03.2011 but Archana Das did not accept the promotion. Therefore, the promotion of Archana Das was considered by subsequent memo dated 15.11.2012 since her promotion was due. It is also contended by the respondents that Archana Das was also promoted with the petitioner by memo dated 30.03.2011 but Archana Das did not accept the promotion. Therefore, the promotion of Archana Das was considered by subsequent memo dated 15.11.2012 since her promotion was due. The petitioner since was promoted and she accepted and joined the promotional post but subsequently surrendered the promotion, she was not considered for promotion in the year 2012. The petitioner since already surrendered her promotion, and she was already reverted to the original post, she cannot now claim benefit of that promotion order dated 30.03.2011. 4. Mr. Roy Barman, learned counsel for the petitioner submitted that the petitioner is a physically challenged person but she is a devoted worker and that is reflected in Annexure-P/9 to the writ petition, a forwarding letter of the petitioner’s superior officer in the station. She accepted her promotion and joined the post. Thereafter, she made repeated representation being a physically challenged person for her transfer to Kumarghat where her husband and other family members reside since she was not in a position to pursue her normal life without help of others. The respondents did not give any response to the representations and therefore out of her utter frustration she made representation dated 29.07.2011 and surrendered her promotion and prayed for her posting at Kumarghat in her original post and that was allowed by the respondents most illegally giving goodbye to the provisions of the PWD Act, 1995. The respondents failed to take affirmative action beneficial to a disabled person as per the provisions contained in PWD Act and therefore, the order of respondent No.2 reverting the petitioner to the post of Jr. Social Education Organizer from the post of Supervisor (ICDS) was liable to be quashed and the petitioner should be given all promotional benefits as per memo dated 30.03.2011. Learned counsel referred the case of Kunal Singh Vrs. Union of India & Anr., reported in (2003) 4 SCC 524 and the case of Bhagwan Dass & Anr. Vrs. Punjab State Electricity Board, reported in (2008) 1 SCC 579 . 5. Learned G.A., Mr. Dutta Majumder has submitted that once the petitioner surrendered the promotion and that was accepted sympathetically by the authority and she was reverted to her original post, she cannot be given the benefit of earlier promotion. Vrs. Punjab State Electricity Board, reported in (2008) 1 SCC 579 . 5. Learned G.A., Mr. Dutta Majumder has submitted that once the petitioner surrendered the promotion and that was accepted sympathetically by the authority and she was reverted to her original post, she cannot be given the benefit of earlier promotion. Subsequently she was not considered for promotion since earlier she surrendered the promotion and her case cannot be treated as similar to that of the case of Archana Das. The petitioner is not entitled to get any relief in the writ petition. Learned G.A. referred the case of C.V. Satheesh chandran Vrs. General Manager, Uco Bank & Ors., reported in (2008) 2 SCC 653 . 6. It is an admitted position that the petitioner is a physically challenged person. She is suffering from “disarticulation of elbow” having 75% loco motor disability. Since the petitioner is a disabled person, she is entitled to all protection and benefits of the PWD Act, 1995. 7. The PWD Act is a welfare legislation. The intents and purposes of this legislation has well been stated in the statements of objects and reasons which reads as follows: “STATEMENT OF OBJECTS AND REASONS 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 on 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. India is a signatory to the said proclamation and it is necessary to enact a suitable legislation to provide for the following:-- (i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities: (ii) to create barrier free environment for persons with disabilities: (iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, vis-a-vis non-disabled persons; (iv) to counteract any situation of the abuse and the exploitation of persons with disabilities; (v) to lay down a strategy for comprehensive development of programmes and services and equalization of opportunities for persons with disabilities; and (vi) to make special provision of the integration of persons with disabilities into the social mainstream. 2. 2. Accordingly, it is proposed to provide inter alia for the constitution of Co-ordination Committees and Executive Committees at the Central and State levels to carry out the various functions assigned to them. Within the limits of their economic capacity and development the appropriate Governments and the local authorities will have to undertake various measures for the prevention and early detection of disabilities, creation of barrier-free environment, provision for rehabilitation services, etc. The Bill also provides for education, employment and vocational training, reservation in identified posts, research and manpower development, establishment of homes for persons with severe disabilities, etc. For effective implementation of the provision of the Bill, appointment of the Chief Commissioner for persons with disabilities at the Central level and Commissioners for persons with disabilities at the State level clothed with powers to monitor the funds disbursed by the Central and State Governments and also to take steps to safeguard the rights of the persons with disabilities is also envisaged. 3. The Bill seeks to achieve the above objects.” 8. Since the petitioner is a Govt. servant working under the respondents she is entitled to the protections prescribed in Section 47 of the Act which 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 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.” 9. The provision prescribed in the PWD Act,1995 should be read as a whole keeping in mind the paramount object of the welfare legislation. Every welfare legislation is actuated with some policy and speaking broadly with some beneficial object behind it. 10. The provision prescribed in the PWD Act,1995 should be read as a whole keeping in mind the paramount object of the welfare legislation. Every welfare legislation is actuated with some policy and speaking broadly with some beneficial object behind it. 10. The petitioner being a disabled person accepted her promotion and joined the post at Gournagar, Kailashahar which was 30 K.M. away from her residence at Kumarghat, the place where she was earlier posted. She made several representations for her transfer at Kumarghat. There were available posts of Supervisor (ICDS) at Kumarghat. The respondents being a welfare State in the department of Social Welfare, were supposed to consider the prayer of an employee of the department itself, who was suffering from physical disability with sympathy. The respondents did not give any response to her repeated representations. It shows that the department was totally apathetic to the cause of a disabled employee of the department itself. When the petitioner’s representation was not adhered she being frustrated prayed for surrendering her promotion and for her posting in the original post at Kumarghat. The petitioner in her writ petition stated that she was a resident of Kumarghat. The respondents contended that in her service record her original residence was mentioned as Boulapasa, Kailashahar. By filing rejoinder, the petitioner stated that her husband’s house is at Kumarghat and earlier while she was unmarried her address was at Boulapasa, Kailashahar which was mentioned in the record. The respondents with their counter affidavit submitted Annexure-R/4, the records of the service book of the petitioner which shows that the original address of the petitioner was mentioned as village Boulapasa, Post and P.S. Kailashahar, North Tripura and subsequently she changed her address and it was recorded in her service book as wife of Sri Shyamal Kumar Pal, C/o Shibendra Nath Pal, Kedarnath Bhavan, village-Bidyasagarpath, P.O. Naihati, 24 Paraganas, West Bengal. It is, therefore, a fact that the petitioner has not shown her permanent address as a resident of Kumarghat in her service record. Be that as it may, a physically challenged employee made representation to the authority for her posting at Kumarghat to stay with her other family members but that was not responded by the Director of SW & SE which is quite unfortunate. Be that as it may, a physically challenged employee made representation to the authority for her posting at Kumarghat to stay with her other family members but that was not responded by the Director of SW & SE which is quite unfortunate. There is no provision in the PWD Act, 1995 that a physically challenged person is to be posted at his/her place of choice but if we read the scheme of the Act as a whole, specially Section 47 of the Act, it would appear that a physically challenged person should be given all benefits so that he/she can continue the job till the date of retirement in a comfortable manner. While a physically challenged person was approaching her authority for her posting at a particular place to stay with her family members and such a posting was possible, it is not understood why it was not considered. 11. In the case of Kunal Singh (supra), the Supreme Court has observed that by virtue of the provision of Section 47 a disabled person should not only be retained in service but also all service benefits should be provided to him. We may gainfully refer here Para 7, 8 and 9 of the judgment which read as follows:- “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) loco motor 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. 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 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 they agreed to give effect to the same. Pursuant thereto this Act was enacted, which came into force on 1st January, 1996. The Act provides some sort of succor 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 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. It must be remembered that 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 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. In construing a provision of 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.” 12. In the case of Bhagwan Dass (supra), the Supreme Court has made observation about the insensitiveness and apathetic attitude by some of us in the society who are living a normal life, towards those unfortunate fellowmen who fell victim to some incapacitating disability. In that reported case the appellant Bhagwan Dass suffered visual impairment while in service and then became completely blind. He was a Class-IV employee and knew nothing about the provisions of PWD Act, 1995. In that reported case the appellant Bhagwan Dass suffered visual impairment while in service and then became completely blind. He was a Class-IV employee and knew nothing about the provisions of PWD Act, 1995. Since he was not in a position to serve, the department was trying to get rid of him and he also approached for pension but when he came to know about the provisions of the Act, he prayed for the benefit as prescribed under Section 47 of the Act. While deciding that case, in Para 2 of the Judgment, the Court was kind enough to observe:- “This case highlights the highly insensitive and apathetic attitude harbourded by some of us, living a normal healthy life, towards those unfortunate fellowmen who fell victim to some incapacitating disability. The facts of the case reveal that officers of the Punjab State Electricity Board were quite aware of the statutory rights of Appellant 1 and their corresponding obligation yet they denied him his lawful dues by means that can only be called disingenuous.” In Para 20 of the judgment, the Court has observed thus:- “In the light of the discussions made above, the action of the Board in terminating the service of the disabled employee (Appellant 1) with effect from 21-3-1997 must be held to be bad and illegal. In view of the provisions of Section 47 of the Act, the appellant must be deemed to be in service and he would be entitled to all service benefits including annual increments and promotions, etc. till the date of his retirement. The amount of terminal benefits paid to him should be adjusted against the amount of his salary from 22-3-1997 till date. If any balance remains, that should be adjusted in easy monthly installments from his future salary. The appellant shall continue in service till his date of superannuation according to the service records. He should be reinstated and all due payments, after adjustments as directed, should be made to him within six weeks from the date of presentation of a copy of the judgment before the Secretary of the Board.” 13. The petitioner did not approach the Court at that point of time when her representations were not considered but she had chosen to make representation surrendering her promotion and that was accepted. The petitioner did not approach the Court at that point of time when her representations were not considered but she had chosen to make representation surrendering her promotion and that was accepted. While the petitioner herself volunteered to surrender her promotion, she cannot now claim that she should be given the benefits of promotion as per the memo dated 30.03.2011. She was already reverted back to the post of Jr. Social Education Organizer by memo dated 11.11.2011. I find no force in the prayer of the petitioner to set aside that memo dated 11.11.2011 since it was issued on the prayer of the petitioner herself. 14. The Case of C.V. Satheeschandran (supra) referred by learned G.A. is on a different context and is not all applicable in the facts of the case of the petition. 15. It is an admitted position that in the year 2012 by memo dated 15.11.2012 respondent No.2 promoted 58 nos. of Jr. Social Education Organizers to the post of Supervisor (ICDS). The petitioner was not considered at that time for promotion to the post of Supervisor (ICDS). The plea of the respondents is that she had earlier surrendered her promotion and therefore, her case was not considered. It is an admitted position that one Archana Das was also promoted with the petitioner by memo dated 30.03.2011 but Archana Das did not accept promotion at that time. By memo dated 15.11.2012 Archana Das was promoted to the post of Supervisor (ICDS) but the petitioner’s case was not considered. The respondents contended that the petitioner’s case was not considered since she voluntarily surrendered her promotion and prayed for reverting her to the original post. Promotion of Archana Das was considered since she did not accept promotion earlier and therefore, subsequently her promotion was considered. The plea of the respondents in refusing the benefits of promotion to the petitioner is clearly in violation of her right as guaranteed by the Constitution and also in violation of the provisions of the PWD Act. The petitioner was entitled to get promotion along with others according to her seniority if not found unsuitable for any other reason at the time when memo dated 15.11.2012 was issued. There was no valid reason at all to refuse the promotion to the petitioner in the year 1012 while others were promoted. The petitioner was entitled to get promotion along with others according to her seniority if not found unsuitable for any other reason at the time when memo dated 15.11.2012 was issued. There was no valid reason at all to refuse the promotion to the petitioner in the year 1012 while others were promoted. On the ground of her disability or surrender of promotion earlier, at a subsequent stage her due promotion cannot be denied. 16. For fair ends of justice, I think proper direction may be given to the respondents to give promotion to the petitioner and also to give her posting at a place where her other family members reside. 17. The respondents are accordingly directed to give promotion to the petitioner along with others who were considered for promotion by memo dated 15.11.2012 according to her seniority with retrospective effect notionally. She should be posted in a place of her choice, if the promotional post is available at such place, so that she can comfortably discharge her duties attached to her post. 18. With the above direction and observation, the writ petition stands disposed of. 19. The respondents are directed to comply the order within 45 days from today.