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2025 DIGILAW 1227 (KER)

Nissam H. S/o Hassan Pillai v. State of Kerala

2025-05-19

ANIL K.NARENDRAN, MURALEE KRISHNA S.

body2025
JUDGMENT : MURALEE KRISHNA, J. 1. The petitioner in W.P. (C) No.12233 of 2021 filed this writ appeal under Section 5(i) of the Kerala High Court Act, 1958, being dissatisfied by the judgment dated 10.08.2023 passed by the learned Single Judge, whereby that writ petition filed by the appellant under Article 226 of the Constitution of India was disposed of by issuing various directions. 2. According to the appellant, he entered service in the 4 th respondent Kerala State Electricity Board on 16.05.1998 as an Electricity Worker ITI, in its electrical section at Peringottukara in Thrissur District. While he was on duty, on 14.09.1998, he had a fall from an electric post and suffered severe injury which resulted in developing nervous disorder. Consequent to the same, he has been suffering from 45% 'Bipolar disorder'. The appellant was unable to perform his official duties owing to his illness. Therefore, he made an application claiming benefits under Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (‘the Act’ in short). On the request of the appellant, the 2 nd respondent issued Ext. P1 Communication dated 06.09.2012, directing the appellant to appear before the Appellate Medical Board, Medical College, Thiruvananthapuram for assessing his disability. 2.1. In pursuance to Ext.P1 letter, the appellant appeared before the Appellate Medical Board and after examination, by Ext.P2 Certificate dated 13.02.2013 issued by the Medical Appellate Board, he was assessed with a disability of 45% and it was categorized as severe 3. The duration of illness is noted as 8 years. The appellant then submitted Ext.P3 representation dated 21.03.2013 to the 5 th respondent detailing the fact that he is unable to perform his official duties due to illness and requested to create a supernumerary post and accommodate him against such a post as mandated in Section 47 of the Act. 2.2. The appellant was made to compulsorily retire from service by an order dated 21.04.2014 issued by the 5 th respondent, against which he filed a statutory review petition before the 1 st respondent. He further approached this Court by filing W.P.(C)No.8745 of 2024, in which Ext.P4 judgment was passed directing the 1 st respondent to consider the appeal filed by the appellant after taking into account Ext.P14 legal opinion produced in that writ petition. He further approached this Court by filing W.P.(C)No.8745 of 2024, in which Ext.P4 judgment was passed directing the 1 st respondent to consider the appeal filed by the appellant after taking into account Ext.P14 legal opinion produced in that writ petition. The law department again gave Ext.P5 legal opinion dated 04.08.2015 stating that the appellant is entitled to salary as well as all the service benefits irrespective of the fact whether he was present or absent for duty from the date he fell ill. 2.3. By Ext. P6 Order dated 13.05.2015, the 1 st respondent directed the 4 th respondent Board to create a supernumerary post and to accommodate the appellant against such vacancy in accordance with Section 47 of the Act. It was further directed that the period in which the appellant was absent for duty and the period after giving compulsory retirement shall be regularized as leave without allowances. The appellant then submitted Ext.P7 representation dated 25.05.2015 to the 1 st respondent for review of Ext.P5 order and for disbursal of salary and other benefits to him from 2005. The 5 th respondent issued Ext.P8 order dated 15.09.2015, appointing the appellant to the Supernumerary Post of Overseer in TMR Division, Thirumala. In that order, it was directed to regularize the period of absence and to treat the period after compulsory retirement as LWA. The appellant then submitted Ext.P9 representation dated 01.12.2015 to the 5 th respondent requesting pay and allowances for the period from 04.10.2004. The 5 th respondent sought clarification from the 4 th respondent whether the salary and other benefits could be disbursed to the appellant as the incumbent needed to submit a duly signed joining report before the officer concerned. To this query, the 4 th respondent issued Ext.P10 Note dated 14.12.2015 stating that the Government has accorded sanction for accommodating the appellant under supernumerary post, giving the benefit of Section 47 of the Act and hence it is not fair to deny his salary on the basis that he has not given a joining report. 2.4. Even after repeated requests from the appellant, his salary and service benefits were not disbursed and hence he filed Ext.P11 representation dated 20.02.2017 before the 3 rd respondent which is constituted under Section 79 of the Rights of Persons with Disabilities Act, 2016 . 2.4. Even after repeated requests from the appellant, his salary and service benefits were not disbursed and hence he filed Ext.P11 representation dated 20.02.2017 before the 3 rd respondent which is constituted under Section 79 of the Rights of Persons with Disabilities Act, 2016 . Pursuant to Ext.P11 representation, the 3 rd respondent issued Ext.P12 order dated 27.07.2017 directing the appellant to attend duty during the period he is not sick and during the period of his illness he is exempted from appearing for duties, provided it has to be certified by a government doctor having postgraduate degree in the subject that the appellant was sick during that particular point of time. The 5 th respondent sent Ext.P13 letter dated 04.05.2018 in response to the representations submitted by the appellant to the Chief Minister. It is stated that the opinion of the 1 st respondent has been sought regarding the period he has been denied salary due to absence from duty. The 5 th respondent also sent Ext.P14 letter dated 07.08.2020 to the 6 th respondent directing that the period of absence of the appellant be treated as LWA. The 6 th respondent sent Ext. P15 letter dated 19.08.2020 informing the appellant that the period from the date of compulsory retirement to 27.07.2017 shall be treated as LWA for personal purposes and absence from 27-07-2017 till the date of joining at Electrical Section Kazhakkoottam shall be considered as LWA on medical ground if the appellant provides a medical certificate, otherwise that may also be considered as LWA for personal purposes. By Ext.P16 Letter dated 03.11.2020, the 2 nd respondent informed the appellant that he is entitled to get salary and all other service benefits for the period he was absent from duty and the period he was made to compulsorily retire till the period he was given posting on supernumerary basis. However, no benefits have been disbursed to him. 2.5. It is further pleaded by the appellant that this court, by the interim order dated 15.09.2021 directed the respondents to consider Ext.P16 and pass orders within 3 weeks. However, no benefits have been disbursed to him. 2.5. It is further pleaded by the appellant that this court, by the interim order dated 15.09.2021 directed the respondents to consider Ext.P16 and pass orders within 3 weeks. In compliance with that interim order, the 1 st respondent passed Ext.P21 order dated 25.10.2021, observing that granting salary and other benefits to the appellant for the period of absence would cause a bad precedent and further directing the appellant to report for duty and attend office when his mental condition is normal. Thereafter, the appellant approached this Court with the writ petition filed under Article 226 of the Constitution of India, seeking the following reliefs: “(i) Issue writ of Mandamus or any other writ or Order directing the respondents 4 to 6 to disburse salary and all other service benefits including increments to the petitioner for the periods of absence subsequent to date of acquiring disability ie from 13.02.2005, along with interest at the rate of 10 % p.a. (ia) to Issue a writ of certiorari or any other writ or Order setting aside Ext.P21 order; (ii) Issue writ of Mandamus or any other writ or Order directing the respondents 4 to 6 to disburse salary and other benefits including increments for the periods from 09.03.2007 to 29.11.2009, 14.07.2011 to 28.10.2012, 20.11.2013 to 04.02.2020 and 22.09.2020 to 04.11.2020 and from 01.03.2001, along with interest at the rate of 10 % p.a; (iii) Call for the records leading to Ext P6, Ext P8 Orders and Ext P14 and P15 communications and issue a writ of certiorari or other appropriate writ or order setting aside the same to the extent these direct to treat the period of absence and period after compulsory retirement as LWA; (iv) Call for the records leading to Ext P12 Order and issue a writ of certiorari or other appropriate writ or order setting aside the same; (v) To declare that the petitioner is entitled to get salary and all other service benefits including increments upto the date of superannuation without insisting for any conditions including attendance in office and will be eligible for retirement benefits considering the entire period of service including period of absence”. 3. The 1 st respondent filed a counter affidavit dated 17.01.2022, opposing the reliefs sought in the writ petition and also producing therewith Exts. R1(a) to R1(e) documents. 3. The 1 st respondent filed a counter affidavit dated 17.01.2022, opposing the reliefs sought in the writ petition and also producing therewith Exts. R1(a) to R1(e) documents. Respondents 4 to 6 also filed a counter affidavit dated 25.01.2023, producing there with Exts. R4(a) to R4(q) documents. 4. In the impugned judgment, the learned single judge observed that after the Government found that the appellant is entitled to protection under the Act, it was improper for them to have concluded Ext.P21, saying that if he is given any benefit, it would set a wrong precedent. The learned Single Judge observed that the said apprehension of the Government is certainly untenable and contrary to the statutory scheme. However, the learned Single Judge further stated that Ext.P2 disability certificate was issued in the year 2013, which records that the appellant is suffering from Bipolar mood disorder, but without any mention as to whether it is treatable or whether the condition of the appellant can be improved through medications and other ancillary interventions. The learned Single Judge, by noting that Ext.P2 is of the year 2013, found that a further assessment of the appellant is certainly necessary and disposed of the writ petition, issuing various directions. The operative portion of the impugned judgment reads thus: “(a) The competent Authority of the KSEB will immediately write to the Superintendent, Medical College Hospital, Thiruvananthapuram - which shall be done within a period of one week from the date of receipt of a copy of this judgment, along with all available documents, including Ext.P2 - relating to the petitioner’s condition, requesting to constitute a competent Psychiatric Medical Board, so as to assess the petitioner. (b) The Superintendent of the Medical College Hospital, Thiruvananthapuram, will, upon receipt of the afore requisition, constitute a Medical Board as necessary, within a period of two weeks thereafter. (c) After the Medical Board is so constituted, the petitioner and/or his wife will be notified of the same, and he will be directed to appear on a particular day for an evaluation. If, for any reason, it is inconvenient to the petitioner or his wife to attend the assessment on the date fixed, a fresh date will be notified, subject to mutual convenience. If, for any reason, it is inconvenient to the petitioner or his wife to attend the assessment on the date fixed, a fresh date will be notified, subject to mutual convenience. (d) On the petitioner being assessed by the Medical Board as afore, the Report of the same will be sent to the competent Authority of the KSEB and this shall be done at the earliest, but not later than one month from the date on which the petitioner’s requisition for reassessment was received. (e) On the opinion of the Medical Board being thus made available to the KSEB, they will hear the petitioner or his wife and take a final decision on the claims impelled by him in this writ petition, as also how he should be dealt with in future, depending upon the medication and such other regime which he is advised by the Doctors, within the ambit of the Act. Final orders in such regard shall be issued without any avoidable delay, but within a period of six weeks from the date on which they received opinion from the Medical Board”. 5. The appeal was filed with a delay of 476 days, and by the order dated 21.02.2025 in C.M. Application No.1 of 2024, this court condoned the delay. 6. Heard the learned counsel for the appellant, the learned Senior Government Pleader and the learned counsel appearing for the 4 th respondent. 7. The learned counsel on both sides addressed extensive arguments by relying on various decisions of the Apex Court regarding the entitlement of a person suffering from disability for non-discriminatory treatment in the workplace. The decisions cited by the learned counsels deal with Section 47 of the Act, which stipulates that an employee who suffers from disability shall not be discriminated in Government employment. 8. There is no quarrel on the point that Section 47 of the Act deals with how a person suffering from disability has to be accommodated in the workplace, which also stipulates that the employee shall not be denied promotion merely on the ground of his disability. Therefore, it is not necessary to discuss the judgments on that point rendered by the Apex Court. 9. Therefore, it is not necessary to discuss the judgments on that point rendered by the Apex Court. 9. The issue before us is the necessity of undergoing a medical examination by the appellant as directed by the employer as well as by the learned Single Judge in the impugned judgment, which was purely based on facts. 10. The learned counsel for the appellant would submit that once a medical certificate is obtained and that certificate shows that the appellant has been suffering from permanent disability, then it is not necessary for him to appear again for reassessment of his disability. As per Section 47 of the Act, it is the duty of the Government to accommodate the appellant in a supernumerary post and he cannot be directed to appear for duty. It is further submitted by the learned counsel that the appellant has been suffering from a severe type of disability, and it is not possible for him to appear for duty as directed in Ext.P21. The direction issued by the learned single judge for reassessment of the disability of the appellant is against the statutory mandate and hence he need not appear before the Medical Board. 11. On the other hand, the learned counsel appearing for the 4 th respondent would submit that in Ext.R4(c) and R4(d) certificates, the disability of the appellant is noted as Orthopaedic Disability. It was only in the subsequent certificates that the disability was noted as Bipolar Disorder. In Ext. R4(g) his disability is assessed as 60% which is now reduced to 45% in the last assessment as evident from Ext.P2. This variation itself shows that the disability of the appellant is a treatable one and hence it has to be assessed whether he can be accommodated in any of the suitable posts under the respondent. 12. The learned Senior Government Pleader would submit that as per Section 20 of the Rights of Persons with Disabilities Act, 2016 , the necessity to create a supernumerary post has to be assessed by sending the appellant to the medical board and hence there is no illegality in the judgment of the learned Single Judge. It is further argued by the learned Senior Government Pleader that Bipolar Disorder is a kind of disability that varies in degree and is treatable. It is further argued by the learned Senior Government Pleader that Bipolar Disorder is a kind of disability that varies in degree and is treatable. A person suffering from Bipolar Disorder would be able to do his job to the extent possible and the appellant is trying to get salary and other benefits without doing any work by raising false claims. 13. Along with I.A No.1 of 2025 the appellant has produced Annexures 1 to 4 and along with I.A. No.3 of 2025 he produced Annexures 5 to 13 documents, under Order XLI Rule 27 of the Code of Civil Procedure, 1908. Having considered the reason for non-production of those documents in the writ petition stated in the affidavit filed in support of the applications, we received those documents by allowing the interlocutory applications since they are necessary for a just decision in the ‘lis’. 14. The appellant is an employee under the 4 th respondent Kerala State Electricity Board. While working as Overseer he was identified as a person suffering from Bipolar Disorder. In Ext.P2 Disability Certificate dated 13.02.2013 issued by the Appellate Medical Board, he was assessed with 45% of permanent disability. He is claiming the benefit of Section 47 of the Act which is later substituted with Section 20 of the Rights of Persons with Disabilities Act, 2016 and is claiming that he is entitled to be placed by creating a supernumerary post. However, according to the 4 th respondent employer of the appellant, the disability of the appellant is not of a nature that completely prevents him from discharging official duties and his disability has to be assessed so as to identify whether he can be accommodated in any other post. 15. The appellant is challenging Ext.P12 order, which directs him to appear for duty whenever his health condition permits and to produce the medical certificate showing his disability when he was not able to attend duty. According to him, he need not attend the office at all to claim salary and other service benefits since a supernumerary post is to be created to accommodate him. However, according to the employer KSEB and the government, the appellant can be accommodated in a suitable post, and he needs to attend the office as and when his health condition permits. However, according to the employer KSEB and the government, the appellant can be accommodated in a suitable post, and he needs to attend the office as and when his health condition permits. In order to reach a finding on these contentions, it would be apposite to refer the relevant provisions contained in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 as well as in the Rights of Persons with Disabilities Act, 2016 . Prior to the introduction of the Rights of Persons with Disabilities Act, 2016 , Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 dealt with the situation of an employee suffering from disability. The said section reads thus: “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.” 16. Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 is now substituted with Section 20 of the Rights of Persons With Disabilities Act, 2016, which reads thus: “20. Non-discrimination in employment.-- (1) No Government establishment shall discriminate against any person with disability in any matter relating to employment: 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, exempt any establishment from the provisions of this section. (2) Every Government establishment shall provide reasonable accommodation and appropriate barrier free and conducive environment to employees with disability. (2) Every Government establishment shall provide reasonable accommodation and appropriate barrier free and conducive environment to employees with disability. (3) No promotion shall be denied to a person merely on the ground of disability. (4) No Government establishment shall dispense with or reduce in rank, an employee who acquires a disability during his or her service: Provided that, if an employee after acquiring disability is not suitable for the post he was holding, shall 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. (5) The appropriate Government may frame policies for posting and transfer of employees with disabilities”. 17. A thorough reading of these provisions would make it clear that if an employee after acquiring disability is not suitable for the post he was holding, he could be shifted to some other post with the same pay scale and service benefits. Only if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post. That also until a suitable post is available or he attains the age of superannuation, whichever is earlier. 18. The appellant is suffering from Bipolar Disorder. As per Taber’s cyclopedic medical dictionary, 21 st Edition, Bipolar Disorder is a psychological disorder marked by manic and depressive episodes. Bipolar disorders are divided into four main categories: bipolar I, bipolar II, cyclothymia and nonspecified disorders. Mania is the essential feature of bipolar I, whereas recurrent moods of both mania and depression mark bipolar II. 19. According to Davidson's Principles and Practice of Medicines 24 th Edition, Bipolar disorder is an episode disturbance with interspersed periods of depressed and elevated mood; the latter is known as hypermania when mild or short-lived, or mania when severe or chronic. The lifetime risk of developing bipolar disorder is approximately 1% - 2%. Onset is usually in the twenties, and men and women and equally affected. The lifetime risk of developing bipolar disorder is approximately 1% - 2%. Onset is usually in the twenties, and men and women and equally affected. The definition of Bipolar Disorder in Taber’s cyclopedic medical dictionary and Davidson show that bipolar disorder is basically a mood disorder that can be treated and the ultimate goal of treatment is to put the person in the same position as that before illness by continuous medication. 20. As per the Ext.P2 disability certificate issued by the medical board, the appellant has been suffering from Bipolar mood disorder and by an inpatient assessment carried out from 01.01.2013 to 07.01.2013, the disability is assessed as 45%. As per the said certificate, the disability assessed using IDEAS scores is as under: 1. Impairment in self-care (Mild-1) 2. Interpersonal relationship (Mild -1) 3. Communication (Mild-1) 4. Work (Severe-3) 5. Duration of illness 8 years with disability - (3) 21. In Exts.R4(e) and R4(g) certificates the nature of this disorder is categorised as moderate. From the said certificates we notice that in order to categorise the said mood disorder as a severe one, the percentage of the disorder shall be 75% and above. The percentage of disability less than 40% is categorised as mild and the percentage of disability of 40 and above is categorised as moderate. 22. According to the 4 th respondent, the percentage of disability of the appellant is varying and this contention of the respondent is fortified by Ext.R4(g) medical certificate dated 13.07.2012 wherein the disability is assessed as 60% and whereas in Ext. P2 the disability percentage is assessed as 45% on 13.02.2013. The upshot of the above discussion is that Bipolar Disability cannot be considered as one preventing a person from doing any job. It is basically a mood disorder that can be treated. It is noting all these aspects the learned Single Judge directed the appellant to undergo a medical examination once again. However, the appellant has been not ready to undergo the medical examination as evident from the submissions made at the bar. He filed this writ appeal with a huge delay of 476 days. During the pendency of the above writ appeal, the 6 th respondent has initiated disciplinary proceedings against the appellant by Annexure A1 order dated 18.02.2025 produced along with I.A. No.1 of 2025. The appellant would be entitled to challenge the same in appropriate proceedings. 23. He filed this writ appeal with a huge delay of 476 days. During the pendency of the above writ appeal, the 6 th respondent has initiated disciplinary proceedings against the appellant by Annexure A1 order dated 18.02.2025 produced along with I.A. No.1 of 2025. The appellant would be entitled to challenge the same in appropriate proceedings. 23. Having considered the pleadings and materials on record and the submissions made at the Bar, we find no sufficient ground to interfere with the impugned judgment of the learned Single Judge. 24. In the result, the writ appeal stands dismissed, however, making it clear that the appellant is entitled to challenge Annexure A1 order in appropriate proceedings.