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Rajasthan High Court · body

2022 DIGILAW 1980 (RAJ)

Bhola Ram v. State Of Rajasthan

2022-07-08

REKHA BORANA

body2022
JUDGMENT Rekha Borana, J. - The present writ petition has been filed against the order dated 18.04.2017 (Annex. -1), whereby sanction has been granted by the State Government for adjustment of the petitioner on the post of Class-IV Employee and order dated 04.05.2017 (Annex. -2) vide which the petitioner has been directed to be adjusted against the post of Class-IV Employee w.e.f. the date of his joining on the post of Class-IV Employee. 2. The brief facts of the case are as under:- The petitioner has been working as Cleaner-cum-Chowkidar with the respondent-Department since his appointment in the year 1988. In the year 1995, he met with an accident and therefore, as he was unable to perform the duties of Cleaner-cum-Chowkidar, he was assigned the duties of LDC and since then, admittedly he was working as an LDC with the respondent-Department. But despite the continuous request of the petitioner, no official letter/order was issued for accommodation of the petitioner on any other post in terms of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as 'the Act of 1995'). Ultimately, sanction for accommodation of the petitioner on the post of Class-IV Employee was granted by the State Government vide order dated 18.04.2017 and in pursuance to the same, office order dated 04.05.2017 was issued by the Department accommodating him on the post of Class-IV Employee with prospective effect. The said orders are under challenge in the present writ petition. 3. It has been submitted by the counsel for the petitioner that the prospective application given to the impugned order dated 04.05.2017 is totally illegal as the petitioner, since his accident, was working as an LDC and admittedly was discharging the duties of LDC since the year 1995. Therefore, he ought to have been accommodated/absorbed on the post of LDC w.e.f. the year 1995. In the alternate, learned counsel submitted that even if he was to be accommodated on the post of Class-IV Employee, that also ought to have been w.e.f. the year 1995. 4. Per contra, learned counsel for the respondents submitted that as the sanction for accommodation of the petitioner on the post of Class-IV Employee was received from the State Government in the year 2017, the effective orders were passed in pursuance to the same just a month after the receipt of the same. 4. Per contra, learned counsel for the respondents submitted that as the sanction for accommodation of the petitioner on the post of Class-IV Employee was received from the State Government in the year 2017, the effective orders were passed in pursuance to the same just a month after the receipt of the same. Learned counsel submitted that without the sanction of the State Government, the effective orders could not have been passed by the Department and as the sanction received by the State Government was to be made effective from the date of the passing of the order, the consequential orders, in consonance, were passed by the Department. 5. Heard learned counsel for the parties and perused the material available on record. 6. Section 47 of the Act of 1995 reads as under:- "47. Non-discrimination in Government employment:- (1) No establishment shall dispense with, or reduce in rank, an employee who requires 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." 7. It is an admitted case that the petitioner met with an accident in the year 1995 and after that, in terms of Section 47 of the Act of 1995, he was to be accommodated on some other post with the same pay scale and service benefits. It is also and rather admitted on record that since the year 1995, the petitioner had been performing the functions of an LDC. The certificates regarding the same have been placed on record and the same have not been disputed by the respondent-Department. In view of the same, it is clear that the petitioner was performing the functions of LDC since the year 1995. The certificates regarding the same have been placed on record and the same have not been disputed by the respondent-Department. In view of the same, it is clear that the petitioner was performing the functions of LDC since the year 1995. But in terms of Section 47, as he could have been shifted to some other post with the same pay scale and service benefits, it cannot be directed that the petitioner ought to have been accommodated on the post of LDC since the year 1995 but his accommodation on the post of Class-IV Employee definitely ought to have been with retrospective effect i.e. since the year 1995. 8. Therefore, the impugned orders dated 18.04.2017 (Annex. -1) and 04.05.2017 (Annex. -2) being totally in contravention to Section 47 of the Act of 1995 deserve to be quashed and are hereby quashed. It is directed that the petitioner would be accommodated/absorbed on the post of Class-IV Employee w.e.f. 01.01.1995 and all the consequential benefits arising out of the same would also be granted to the petitioner. It is made clear that the benefit after the completion of the nine years of service as a Cleaner-cum-Chowkidar, already granted to the petitioner, would now be permitted to be withdrawn and the same would be replaced by the fresh consequential orders (revision of pay scale, promotion, retiral benefits etc.) arising out of his accommodation/absorption on the post of Class-IV Employee w.e.f. 01.01.1995. 9. The present writ petition is allowed on the above terms. 10. All the pending applications also stand disposed of.