JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Munshaw, learned advocate for the petitioner, and Mr. Mirza, learned advocate for the respondent. 2. In present petition, the petitioner has placed under challenge order dated 22.3.2007 passed by the Commissioner appointed under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 [hereinafter referred to as the "Commissioner"] in case No. 219 of 2006. 3. So far as factual background is concerned, it has emerged from the record that present respondent No. 1 was employed on temporary, ad-hoc and daily wage basis w.e.f. 1.12.1993. He was continued as such and upon completion of five years of service, the respondent No. 1 was paid fixed salary at Rs. 750/- in accordance with Resolution dated 17.10.1988. The said effect was granted vide order dated 30.6.1999. 3.1 It appears that subsequently, the respondent No. 1 approached Commissioner with the allegation that he possesses qualification for being engaged as skilled worker and that therefore, he should be treated as skilled worker and employer should pay him salary at Rs. 950/- per month instead of considering him as unskilled worker. 3.2 To support his claim that he should be considered as skilled worker, he relied on the certificate issued by Technical Examination Board, Gujarat State, certifying that Patel Mahendrakumar Nathalal (i.e. present respondent) had undergone and completed course of Wireman Apprentice. 3.3 Besides this, so as to support his case, he also relied on certificate issued by Medical Officer certifying that he suffered 75% visual impairment category- II. 3.4 On the strength of the said documents, he asserted that the Commissioner would have jurisdiction to consider and decide his application and he also supported his claim that he should be considered skilled worker and should be paid salary at the rate of 950/- p.m. in accordance with Government Resolution dated 17.10.1988. 3.5 It further appears from the record that in response to the notice issued by the Commissioner, the petitioner board appeared before the Commissioner and an employee/officer of the board seems to have made statement before the Commissioner that the respondent would be paid salary at rate of 950/- p.m. 3.6 It appears that on such statement by the employee, the Commissioner terminated the case. 3.7 During the proceedings before the Commissioner, the petitioner board contended that the respondent was never engaged as skilled worker and actually, he was engaged as unskilled labour on temporary basis. It was also contended that the Commissioner would not have jurisdiction to determine appropriate pay scale for the claimant and/or rate of salary at which the claimant should be paid salary. 3.8 The board also contended that in view of the fact that the petitioner's salary is not modified/reduced on account of injury for impairment, the proceedings are not maintainable. 3.9 After hearing the parties, the Commissioner passed impugned order. 4. In this factual background, Mr. Munshaw, learned advocate for the petitioner, contended that the respondent was never engaged as skilled worker. There was no material on record before the Commissioner to reach to the conclusion that the respondent was appointed as skilled worker. He also submitted that the officer who appeared before the board did not have authority to declare on behalf of the board that the claimant will be considered skilled employee and/or that he would be paid salary at Rs. 950/-. He also contended that the Commissioner did not have authority in law to decide the status of employee (as skilled or unskilled worker) or pay scale for the employee and that therefore, the order is without application of mind and without jurisdiction. 5. On the other hand, Mr. Mirza, learned counsel for the claimant asserted that the respondent possessed qualification for being appointed/engaged as skilled worker, however, the board treated the claimant as unskilled worker and paid salary as unskilled worker. Mr. Mirza, learned counsel, further submitted that because of such injustice, the claimant had approached the Commissioner and the board appeared before the Commissioner and the Commissioner was assured that the claimant will be paid salary at Rs. 950/-. He submitted that in view of said statement and assurance by the board's officer, the proceedings before the Commissioner were closed and thereafter, recommendation was forwarded by the Dy. Executive Engineer vide his communication dated 18.11.1999. Thereupon, the board had passed order dated 17.12.1989 in light of which the claimant was paid salary at Rs. 950/-, however, subsequently, the board arbitrarily modified the said order by virtue of order dated 5.6.2006 and reduced the claimant's salary to Rs. 750/-. Mr. Executive Engineer vide his communication dated 18.11.1999. Thereupon, the board had passed order dated 17.12.1989 in light of which the claimant was paid salary at Rs. 950/-, however, subsequently, the board arbitrarily modified the said order by virtue of order dated 5.6.2006 and reduced the claimant's salary to Rs. 750/-. Mr. Mirza, learned counsel, submitted that feeling aggrieved by such direction, the claimant approached the Commissioner and after examining all facts and evidence available on record as well as pleadings, the Commissioner has passed impugned order and the said order does not suffer from any infirmity and that therefore, the petition may not be entertained. 6. I have considered rival submissions and material available on record as well as impugned order. 7. The facts, by and large, are not in dispute except the allegation and claim that the claimant was engaged as killed workman. 8. So as to consider and appreciate the controversy in this case, it is relevant to take into account the definition of the term "disability" under clause 2(i) and definition of the term "blindness" under Section 2(b) of the Act as well as the definitions of the term "person with disability" and "person with low vision" as defined under Section 2(t) and 2(u) of the Act. 8.1 It is also necessary to take into account the provision contained under Section 47 of the Act. The said provisions read thus:- "2(i) "disability" means- (i) blindness; (ii) low vision; (iii) leprosy-cured; (iv) hearing impairment; (v) locomotor disability; (vi) mental retardation; (vii) mental illness; 2(b) "blindness" refers to a condition where a person suffers from any of the following conditions, namely - (i) total absence of sight; or (ii) visual acuity not exceeding 6/60 or 20/200 (snellen) in the better eye with correcting lenses; or (iii) limitation of the field of vision subtending an angle of 20 degree or worse;" 2(t) "person with disability" means a person suffering from not less than forty percent of any disability as certified by a medical authority; 2(u) "person with low vision" means a person with impairment of visual functioning even after treatment or standard refractive correction but who uses or is potentially capable of using vision for the planning or execution of a task with appropriate assistive device; 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." 8.2 From above mentioned definitions, it emerge that having regard to the fact that the Medical Officer has certified that the claimant suffers 75% visual impairment in category - II, the claimants case that he is physically disabled and suffers impairment cannot be rejected and does not warrant deliberation and it can be said to be disability as contemplated under the Act. However, the question which would still survive is as to whether the said impairment occurred or developed during the course of employment of the claimant or he was physically disabled/impaired even at the time of his first initial appointment by the board. The second issue which arises in present case is as to whether the board effected change in any service condition of the claimant including his salary on account of or on ground of his disability i.e. on the ground that the employee/claimant acquired or suffered or developed disability. Section 47 of the Act provides, inter alia, that any establishment shall not dispense with service of an employee and/or reduce the rank of an employee who acquires disability during his service. Thus, the pre-condition for exercising jurisdiction in respect of an employee who is reduced in rank or whose service is dispensed with is that such action should have been taken by the employer on account of or on ground of an employee's disability i.e. on the ground that the employee has acquired disability. Thus, the pre-condition for exercising jurisdiction in respect of an employee who is reduced in rank or whose service is dispensed with is that such action should have been taken by the employer on account of or on ground of an employee's disability i.e. on the ground that the employee has acquired disability. Unless such allegation is established and unless the authority is satisfied that requirement exists/is fulfilled, the jurisdiction and authority to direct the employer to restore the employee on original service condition cannot be exercised by the authority. 8.3 On examination of the record of present case, it comes out that there was no evidence on record before the Commissioner which would establish that the respondent took action of reducing claimant's salary on the ground that the employee acquired disability. Actually, the facts in this case are otherwise. From the material on record, it comes out that it was the employee/claimant who had initially raised a demand that he should be treated skilled worker and with demand he approached the Commissioner with a grievance that though he should be considered skilled employee and he should be paid salary at Rs. 950/- the board considers him unskilled worker and he is paying salary at Rs. 750/-. The said claim and allegation by the claimant establishes the fact that even according to his own allegation, he was not considered skilled worker the salary of the claimant at the relevant time was Rs. 750/-. The board has claimed that the claimant was engaged as casual worker/daily wager in unskilled category and he was taken over in fixed salary upon completion of service of 5 years, in light of the provision under the GR dated 17.10.1988. Under the circumstances, the Commissioner was supposed to address the issue as to whether he would have jurisdiction to decide the status of the claimant and/or eligibility of the claimant to claim salary at Rs. 950/-. However, the Commissioner, it appears, had not addressed and/or decided the said issue in previous proceedings and he had closed the proceedings only on the statement of an officer of the board who, allegedly, assured the Commissioner that the claimant will be paid salary at Rs. 950/-. 8.4 Of course, from the material available on record, it appears that the board had passed the order fixing the claimant's salary at Rs. 950/-. 8.4 Of course, from the material available on record, it appears that the board had passed the order fixing the claimant's salary at Rs. 950/-, however, from the record, it does not come out that the board passed the order dated 5.6.2006 re-fixing the claimant's salary at Rs. 750/- on the ground that the claimant has acquired disability and that therefore, his salary should be reduced. The order dated 5.6.2006 appears to have been passed on the ground that the employee who seems to have assured the Commissioner that the claimant's salary would be re-fixed to Rs. 950/-, he had no authority to make such statement or assurance to the Commissioner and previous order was a mistake. Besides this, the Commissioner could not have exercised jurisdiction and passed order deciding such dispute between the employee and employer and/or he could not have passed order fixing salary at Rs. 950/-. It is pertinent that during the hearing of Case No. 219 of 2006, the Board categorically claimed that the order dated 5.6.2006 was passed under mistake and misinformation. The board specifically raised such contention and defence at the time of hearing of case No. 219 of 2006, however, the Commissioner does not appear to have addressed the issue about lack of jurisdiction to decide such controversy, more particularly when there is nothing on record to show that the board passed the order impugned before him on the ground that the claimant acquired disability. Without addressing the said issue, the Commissioner could not and ought not have passed the impugned order and impugned direction. 9. Under the circumstances, the case deserves re-consideration by the Commissioner who should call for relevant evidence from both sides and examine the case in light of proper and sufficient evidence and relevant provisions under the Act and should also address the issue about lack of jurisdiction and should also decide as to whether the order dated 5.6.2006 passed by the board can be said to have been passed on the ground that the claimant has suffered disability and whether the said order would fall within purview of Section 47 or not. 10. In this view of the matter, following order is passed:- "[a] The impugned order dated 22.3.2003 passed by the Commissioner in case No. 213 of 2006 is set-aside and the case is remanded to the Commissioner for re-consideration and fresh order. 10. In this view of the matter, following order is passed:- "[a] The impugned order dated 22.3.2003 passed by the Commissioner in case No. 213 of 2006 is set-aside and the case is remanded to the Commissioner for re-consideration and fresh order. [b] It is clarified that foregoing discussion is only for the purpose of deciding rival contentions and this Court has not expressed any view on merits of the claim or defence and that therefore, the Commissioner shall address and decide the case independently without considering this order as expression of any view by this Court. [c] The Commissioner shall take into account the contentions raised by the petitioner board and shall also address and decide the issues mentioned above, including the issue about objection raised by the petitioner board on the ground of lack of jurisdiction and in accordance with law and relevant provisions under the Act. [d] The Commissioner shall pass appropriate fresh order in accordance with law after taking into account evidence available on record and after granting opportunity of hearing to the claimant as well as the board and without being influenced by previous order." With aforesaid observations and direction, present petition is partly allowed. Rule is made absolute to the aforesaid extent.