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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 740 OF 2012
Shri Prakash Vinayak Naik, ) ... Petitioner.
Age 60 years, Occ.: Retired, R/at
Guruprasad, B/44/B, Final Plot No.302, )
Rajvilas Co-op. Hsg.Society,
Koregaon Park, Pune 411001 )
V/s.
1. Pune Municipal Corporation, )
Corporation Bhavan, Shivajinagar,
Pune-411005, Represented by : )
The Commissioner, P.M.C.
2. The Additional Commissioner, )
Pune Municipal Corporation,
Pune-05 )
3. The Joint Commissioner, )
P.M.Corporation, Pune-05.
4. The Deputy Commissioner, )
(Land Acquisition & Administration)
P.M.Corporation, Pune-05. )
5. Medical Officer of Health, )
Pune Municipal Corporation, Pune-5
6. The State of Maharashtra, ) ... Respondents.
(Copy to be served on the office of
the Learned Govt.Pleader, H.C.A.S., )
Bombay)
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Mr. Sanjeev J.Rairkar for the Petitioner.
Mr. Rajdeep S. Khadapkar for the Respondent Nos. 1 to 5.
Mr. V.S. Gokhale, AGP for the Respondent No.6-State.
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CORAM : MOHIT S. SHAH, C.J. &
ANOOP V. MOHTA, J.
JUDGMENT RESERVED ON 21.11.2012 JUDGMENT PRONOUNCED ON 30.11.2012 JUDGMENT : ( Anoop V. Mohta,J.) 1 The Petitioner, who initially was certificated as "physically handicapped" with 55% disability due to orthopedic cause and lastly certificated as "medically unfit" with "complete and permanent incapacity" due to Hameplegia, has invoked the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and the Rules made thereunder (for short hereinafter referred to as "the Disabilities Act").
2 By Orders dated 12.07.2005 and 28.07.2005, Respondent Nos. 3 and 4 terminated the Petitioner's services from the post of Subordinate Engineer retrospectively w.e.f. 11.04.205 by exercising the powers under Rule 126-A (1)(a) of the Pune Municipal Corporation's Service Rules. The Respondents being the "State"
within the meaning of Article 12 of the Constitution of India, 1950 fall within the ambit of "Establishment" and the Petitioner's physical condition falls within the ambit of "Disability" as contemplated under the Disabilities Act.
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3 The Petitioner's services as an employee were terminated
by the Respondents as he acquired disability during his service. The Petitioner's son's representations dated 10.10.2002 and 26.09.2005, whereby they were seeking appointment on compassionate grounds, were rejected by communication dated 07.03.2006. Therefore, a Writ Petition was filed by the Petitioner some time in August, 2009 though his services were terminated in the year, 2005 itself. The reasons given for the delay was that the Petitioner's son's earlier Writ Petition was rejected by the Division Bench of this Court on 29.06.2006 so also Review Petition on 12.02.2008 and lastly the Special Leave Petition was also dismissed on 30.03.2009 and thereafter, as advised, the present Writ Petition was filed by the Petitioner. The Petitioner has made this as a foundation to justify the delay.
4 The purpose and object of the Persons with Disabilities Act is to safeguard the rights of persons with disabilities, enabling them to enjoy equal opportunities and basically protecting various rights and getting benefit of medical care, education, training, employment and rehabilitation of such persons. We are concerned with the present Petitioner who was declared disabled during the course of his service with the Respondents. Therefore, Section 47 of the Persons ::: Downloaded on - 09/06/2013 19:26:53 ::: spb/ WP740-12.sxw with Disabilities Act has been read and referred by the respective counsel. There is no serious dispute with regard to the frame and contents of this Section. The Apex Court in the case of Kunal Singh vs. Union of India and Another1 has interpreted the provisions of the Persons with Disabilities Act in para 9 of its Judgment in following words :
"....... It must be remembered that a 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 the 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; ........"
In para 12 of the said Judgment the Apex Court observed thus :
"12. Merely because under Rule 38 of the CCS (Pension) Rules, 1972, the appellant got invalidity pension is no ground to deny the protection mandatorily made available to the appellant under Section 47 of the Act. Once it is held that the appellant has acquired disability during his service and if found not suitable for the post he was holding, he could be shifted to some other post with same pay scale and service benefits; if it was not possible to 1 (2003) 4 SCC 524 ::: Downloaded on - 09/06/2013 19:26:53 ::: spb/ WP740-12.sxw adjust him against any post, he could be kept on a supernumerary post until a suitable post was available or he attains the age of superannuation, whichever is earlier. It appears no such efforts were made by the respondents. They have proceeded to hold that he was permanently incapacitated to continue in service without considering the effect of other provisions of Section 47 of the Act."
The Supreme Court has further elaborated the provisions of the Disabilities Act in the case of Bhagwan Dass and Another vs. Punjab State Electricity Board 2 In both these matters, considering the facts and circumstances, the Apex Court has passed the orders/judgments in favour of the employee. The learned counsel appearing for the Petitioner, therefore, has strongly relied upon the said orders/judgments and the provisions in support of the prayer so made in the present Petition. The scheme of the provisions needs to be examined on the basis of respective facts and circumstances.
5 It is relevant to note that the Petitioner who was initially appointed to the post of Encroachment Inspector was promoted to the posts of Maintenance Surveyor, Junior Engineer and Subordinate Engineer on 19.08.1983, 31.03.1995 and 01.01.2000 respectively.
It is recorded that he had suffered paralytic attack on 25.04.1998 and 2 (2008) 1 SCC 579 ::: Downloaded on - 09/06/2013 19:26:53 ::: spb/ WP740-12.sxw therefore, he was on medical leave for six months. The Medical Officer of the Sassoon General Hospital, Pune by certificate dated 16.02.2001 declared him to be "physically handicapped with 55 % disability due to orthopedic cause", as mentioned in the Certificate.
The Petitioner was on leave from time to time.
6 On 12.12.2001 the Medical Board of Respondent No.1 declared the Petitioner "fit" for resumption of his duties as a Subordinate Engineer w.e.f. 13.12.2001 and was advised "light duty"
for three months. By another certificate issued by the same Authority on 16.10.2004, the Petitioner was declared "fit" for table work w.e.f. 17.10.2004. But ultimately, after physical verification and check up, by letter dated 01.04.2005 the Head of the Health Department of Respondent No.1 declared the Petitioner as "medically unfit" inter alia recording that the Petitioner was unable even to hold a file in his hands or write or speak and was suffering from giddiness. It was also recorded that because of this, the administrative difficulties arose as the Department has to deal with the architects, licensed engineers and with the general public.
Various complaints were also received accordingly. Therefore, after due examination, the Medical Officer of Respondent No.1 on 11.04.2005 certified the Petitioner as having "complete and ::: Downloaded on - 09/06/2013 19:26:53 ::: spb/ WP740-12.sxw permanent incapacity" for further service as Subordinate Engineer w.e.f. 11.04.205 due to Hamepleagia. On the recommendations of the Joint Commissioner, the Additional Commissioner of Respondent No.1 issued impugned order dated 12.07.2005, thereby terminated the Petitioner's services w.e.f. 11.04.2005. The Petitioner was accordingly relieved on 28.07.2005. The relevant dues and arrears of pension were paid by the Respondents to the Petitioner on 03.03.2006 and he is getting all other benefits in accordance with the law pursuant to this order.
7 It appears that the Petitioner for the reasons so recorded above, did not challenge the said action and/or the said certificate at the relevant time. The Petitioner and his son were pursuing the concerned authorities for appointment of the son on a compassionate ground since 2002 itself, which was ultimately rejected by the High Court and the SLP was also dismissed on 30.03.2009. The relevant factor is that the Petitioner during this period reached the age of superannuation on 30.06.2007 and filed the present Petition, practically after two years from his retirement. Therefore, the contention of the learned counsel appearing for the Petitioner, referring to the provisions of the Disabilities Act that the Petitioner ought to have been posted to a suitable post till his retirement, ::: Downloaded on - 09/06/2013 19:26:53 ::: spb/ WP740-12.sxw cannot be accepted now as the Petitioner failed to challenge the certificate and/or action of the Respondents immediately and /or within reasonable time so that appropriate steps could have been taken by the Respondent to adjust the Petitioner, as contended, including appropriate posting. It appears that the Petitioner accepted the action in all respect.
8In the present facts and circumstances of the case, it is difficult to over look the factual background where though the Petitioner had suffered first paralytic attack in the year 1998, the Respondent continued the Petitioner since 1998 by providing suitable job. The Petitioner also worked accordingly without any objection based upon the certificates. The Respondent, therefore, ultimately after due verification and appropriate certificates from the Respondent Officer as well as the Board, ultimately has taken the step of terminating the services of the Petitioner for the administrative reasons. One cannot overlook the provisions of the Disabilities Act including later part of Section 47 and even the service conditions where the remedies are available to such employees to challenge such orders within the reasonable time before the appropriate authority. The same was not done by the Petitioner. It appears that the Petitioner's interest was his son's appointment on ::: Downloaded on - 09/06/2013 19:26:53 ::: spb/ WP740-12.sxw the compassionate ground. The Petitioner even admitted that he was not in a position to do any work. Therefore, the respondents cannot be blamed for not creating another post for the petitioner. The challenge so raised in the present writ petition for the first time of not providing suitable post and/or adjustment of the post is unacceptable.
9The prayers made in this Petition are also limited where the Petitioner invoked writ jurisdiction to quash and set aside the orders dated 12.07.2005 and 28.07.2005 and treat the Petitioner in service till 30.06.2007 on the post of subordinate engineer and grant all benefits, including the revised pension. This cannot be granted after considering the facts and circumstances of this case read with the provisions of the Disabilities Act as it no where contemplates or provides to consider the situation like this, where the employee himself admitted his total disability and failed to challenge the orders as well as the Medical Certificate at an appropriate time, knowing fully the effect of such termination, the Petitioner in fact accepted the termination and acted accordingly. Admittedly, on the basis of this termination on medical grounds, they moved the application for appointment on compassionate ground. They awaited for a positive result but by that time the reasonable period for challenge to the ::: Downloaded on - 09/06/2013 19:26:53 ::: spb/ WP740-12.sxw impugned orders and/ or actions of the Respondent was got delayed.
There was no occasion for the Respondent even to consider or provide suitable post to the Petitioner, if he had applied.
10 We are, therefore, of the view that it is difficult to accept the case of the Petitioner that the Respondent failed to consider the mandate of the provisions of the Disabilities Act, in the circumstances of this case. We are inclined to observe that the present Petition suffers from delay and latches apart from the time barred claim and the principle of estoppal and the waiver in view of the specific provisions of the Disabilities Act itself. The Respondents cannot be penalized for the inaction of the Petitioner. They cannot provide any suitable job now as there action remained unchallenged till his retirement. No case to exercise writ jurisdiction in favour of the Petitioner.
11 Therefore, the Writ Petition is dismissed with no order as to costs.
CHIEF JUSTICE (ANOOP V. MOHTA, J) ::: Downloaded on - 09/06/2013 19:26:53 :::