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Gujarat High Court · body

2016 DIGILAW 2178 (GUJ)

NAGINBHAI MOTIBHAI PANCHAL v. STATE OF GUJARAT

2016-11-18

S.G.SHAH

body2016
JUDGMENT : 1. Heard learned advocate Ms.Dimple Thaker appearing for Mr. Rituraj M.Meena for the petitioner and learned AGP Ms.Amita Shah for the respondents. 2. Perused the record. Petitioner herein has challenged the order dated 9.10.2013, whereby he has been made to prematurely retire from his services from the Government, wherein he was serving as Section Officer in Agriculture and Cooperative Department. Such order of compulsory retirement is dated 9.10.2013, copy of which is produced at Annexure-A, which discloses that in the public interest, the petitioner has been made to retire prematurely. It is undisputed fact that petitioner has been appointed as Clerk in such department w.e.f. 26.5.1980 and he was granted benefit of first higher grade scale w.e.f. 26.5.1989 and then promoted to the post of Deputy Section Officer w.e.f. 11.4.1991 and given benefit of second higher grade scale w.e.f. 26.5.2004 as there is no complaint or adverse remarks during whole service period of the petitioner. 3. However, petitioner has received a severe paralytic attack and therefore, he was to be admitted in hospital frequently between 30.7.2007 to April, 2008. Ultimately on 18.4.2008, the Resident Medical Officer, Civil Hospital, Ahmedabad has issued a fitness certificate, copy of which is at Annexure-R-I on page 52. Respondents are taking advantage of such certificate, though such certificate clearly discloses that it is not valid for Court purposes. It is surprising that how a Government Officer is issuing a certificate with an endorsement that it is not valid for Court purpose. Copy of such certificate is also produced by the petitioner on page 17 of the petition. Irrespective of above situation, it becomes clear that such certificate simply confirms that petitioner was under treatment till that date and he is now relieved from treatment from such hospital and thereby, according to the R.M.O., he is fit to perform his duties both personal as well as his office. However, it does not mean that petitioner is not disabled at all, as considered by the department in their affidavit-in-reply. 4. However, it does not mean that petitioner is not disabled at all, as considered by the department in their affidavit-in-reply. 4. The department has failed to realise that they have also received a certificate issued by the same Civil Hospital, Ahmedabad, copy of which is produced at Annexure-R-III, which is issued by an expert Doctor, namely, Dr.Z.M. Patel, an Orthopedic Surgeon of the same hospital, confirming that the petitioner is diagnosed with RPM of both lower limbs and certified that he is having 90% permanent physical impairment in relation to his both lower limbs as per the guidelines. It is also certified that the petitioner is having locomotive disability, which is quite obvious because of paralytic attack. Therefore, action of the respondents to initially rely upon the certificate dated 18.4.2008, is certainly arbitrary, selective and needs to be condemned. Unfortunately, on one hand, department is saying that petitioner is capable to do work as per certificate dated 18.4.2008, but in the office noting, it is stated that since he is unable to do the work, he is burden to the department, as workload is increasing because of inability of the petitioner to carry out his work and therefore, as per the noting in Annexure-RIII with second affidavit dated 6.4.2015, since the petitioner is unable to do any work, department has decided to retire him prematurely as per their G.R. dated 28.4.1987. 5. However, respondent – department has failed to appreciate the provisions of Central Act being the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (‘the Act’, for short). Section 47 of such Act reads as under:- 47. (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. 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. 6. The bare reading of this Section makes it clear that the second Proviso to Sub-Section (1) specifically restricts the department from retiring any disabled person on any ground, but to keep them on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. Therefore, practically, when petitioner has been disabled during his service as per the second Proviso of Sub-Section (1) of Section 47, when it is endorsed by the department that it is not possible to adjust the petitioner against any post, the department has to keep him in a supernumerary post until a suitable post is available or till he attains the age of superannuation, whichever is earlier. Instead of following such provision of law, which is prevailing over any resolution or circular, the department is relying upon the G.R.s dated 28.7.1987 and 12.1.1999. Even at the cost of repetition, let it be made clear that no G.R. can supersede the provisions of any enactment in any manner whatsoever. Thereby, if any G.R. is not in confirmation of any statutory provision, then, those G.R.s need to be ignored. Therefore, when respondents have defended this petition by their affidavit on oath that they are relying upon such G.R.s, ignoring the provisions of Section 47 of the Act, practically, the State Government is trying to emphasize that their internal decision is over and above the Central Act, which is contrary to the settled legal position. Otherwise also, it is pointed out by learned advocate for the petitioner that even if G.R. is to be followed, respondents are supposed to complete the procedure prescribed in such G.R. Whereas in the present case, the impugned order needs to be quashed and set-aside. 7. Otherwise also, it is pointed out by learned advocate for the petitioner that even if G.R. is to be followed, respondents are supposed to complete the procedure prescribed in such G.R. Whereas in the present case, the impugned order needs to be quashed and set-aside. 7. Therefore, even if G.R. dated 12.1.1999 is talking about confidential report or performance of an employee, it is quite clear that efficiency for such purpose is to be considered before the date of disablement and not during the period of disablement and that too adverse facts regarding performance of the employees needs to be conveyed to him at the relevant time. But as aforesaid, the petitioner has been granted all other benefits till the year 2004 and he suffered the paralytic attack in the year 2007, therefore, if there is nothing adverse so far as performance of the petitioner is concerned till the year 2007, then, there is no reason to rely upon the provision of such G.R. dated 12.1.1999. However, in simple words, as stated herein above, even for compliance of such G.R., respondents have to follow provision of such G.R. strictly, but it is quite clear from record that in the present case, the respondents have failed to even follow the provision of such G.R., but have taken shelter by referring such G.R. only. However, at present, since petitioner has crossed the age of superannuation, he is not entitled to continuation in services, but in any case, the impugned order is arbitrary and without considering the provisions of Section 47 of the Act, the same needs to be quashed and set-aside. 8. In view of the above, the petition is allowed as prayed for. Thereby, now, respondents have to extend requisite benefits to the petitioner as if he is not superannuated by impugned order dated 9.10.2013, which is hereby quashed and set-aside, and to release all financial benefits as if he was in services till the date of his regular superannuation as per his date of birth, within four months from the date of receipt of copy of this order. 9. Rule is made absolute. Direct service is permitted. (Rule made absolute)