Prem Narain Singh vs State Of U.P.Through Principal ...
2017 Latest Caselaw 7244 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 24
 
Case: - SERVICE SINGLE No. - 583 of 2000
 
Petitioner :- Prem Narain Singh
 
Respondent :- State Of U.P.Through Principal Secy.
 
Counsel for Petitioner :- S.K.Kalia, Vijay Dixit
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Saral Srivastava,J.

Heard Sri Vijay Dixit counsel for the petitioner and learned Standing Counsel for the State-respondent.

The petitioner has come up in the present writ petition with a prayer for a writ of mandamus commanding the respondents to pay full salary including all admissible allowances to the petitioner till he attained the age of superannuation.

The case of the petitioner in the writ petition is that he was appointed as Sub-Inspector in the Police Department in the year 1966. The petitioner, while he was going for investigation of Case Crime No. 13 to 17/96, met with an accident at about 07:00 P.M. on 23.01.1996. He suffered injuries in the accident and became permanent disabled. The petitioner, thereafter, submitted an application dt.29.12.1996 for grant of pension as he had suffered permanent disability on account of injury. The petitioner was sent for medical examination before the Medical Board, and the Medical Board after examining the petitioner in its report dt.28.01.1997 recorded that the effect of the injury upon petitioner is equal to the loss of all four limbs and that he has became permanent disabled. The Senior Superintendent of Police, Bareilly vide order dated 26.02.1997 sanctioned the Voluntarily Retirement under F.R.56 of the Civil Services Regulation. Thereafter, Senior Superintendent of Police, Bareilly vide order dt. 03.02.1997 sanctioned to the petitioner provisional pension of Rs.1,311/- Per Month w.e.f. 01.04.1997 and gratuity to the tune of Rs.78,681/-.

The petitioner submitted an application on12.05.1997 to the Senior Superintendent of Police, Bareilly stating therein he was entitled for full pay till the date of his superannuation with all allowances, and he submitted the application for pension on wrong advice of pension clerk. The petitioner's application was forwarded by the Senior Superintendent of Police, Bareilly on 24.06.1997 to the Assistant Accounts Officer, Police head Quarter, Allahabad. It appears that the respondent treated the application dt. 12.05.1997 of the petitioner to be an application for grant of extra-ordinary pension. The State Government vide order dt.02.06.199 sanctioned extra-ordinary Pension of Rs.8,748/Per Month and gratuity of Rs.30,000/- to the petitioner, and consequently, the final payment order dt. 15.07.1999 was also issued by The Finance Controller, Police Head Quarter, Allahabad.

The petitioner feeling aggrieved by the order dated 02.06.1999 submitted a representation to the Principal Home Secretary State of U.P., Lucknow, with a prayer that he should be granted the benefit of Section-47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation), Act, 1995 [hereinafter referred as ''Act,1995'] . Thereafter, the petitioner submitted several representations, but the respondent authorities did not consider the same. In the aforesaid backdrop, the petitioner preferred the present writ petition.

It transpires from the record that the petitioner had moved an amendment application for incorporating the prayer of a writ of certiorari for quashing the order dated 26.02.1997 passed by opposite party no. 4, i.e., the Senior Superintendent of Police, Bareilly whereby he has been granted Voluntary Retirement under Rule 56 of Fundamental Rules. The amendment application was allowed by this court vide order dt. 12.10.2017, and consequently, the amendment was incorporated in the writ petition.

A counter affidavit has been filed by the State stating therein that the petitioner has been sanctioned Rs.8,748/- per month pension which was to be paid to him till the age of superannuation or till death whichever is earlier. The amount of pension is equivalent to full salary, as is evident from the last pay certificate. It is further averred in the counter affidavit that besides the aforesaid payment, the petitioner has been paid Rs.5,000/- as financial aid. The post retrial benefits in the shape of gratuity and pension also has been paid to the petitioner. The competent authority has sanctioned Rs.2,654/- per month towards optional pension on account of voluntary retirement. The respondent further stated in the counter affidavit that the provisions of Act of 1995 is not applicable in the case of petitioner as no discrimination has been made against the petitioner on account of disability.

The petitioner filed rejoinder affidavit. In paragraph no. 7 of the rejoinder affidavit, it is stated that the petitioner was paid Rs.8,748/- with effect from 01.04.1997 to 31.07.2000, i.e., till the age of superannuation, but during this period, no increments, House Rent Allowance, and the increased Dearness Allowance were paid to the petitioner, and thus, the respondents have denied the benefit of Section-47 of the Act of 1995. The petitioner further stated that had he retired in ordinary course, the amount of gratuity would have been Rs.1,44,642/- instead of Rs.30,000/- which has been paid to the petitioner.

The counsel for the petitioner has submitted that there is no dispute that the petitioner had become permanently disabled during his service period. He submits that the protection granted to disabled persons under Section 47 of the Act, 1995 is a statutory protection which casts an obligation upon the respondents to extend the said protection to the disabled person who became disabled during the service period. Thus, the petitioner was entitled to continue till he attained the age of superannuation on a post equal to the post on which he was working, and if no post was available, he would have been allowed to continue on a supernumerary post as mandated by the proviso to Section 47 (i) of the Act of 1995. His further submission is that his application for grant of pension cannot be taken to be a ground to deny the benefit of Section 47 of the Act, 1995. The counsel for the petitioner has relied upon the Apex Court judgments Bhagwan Dass and another Vs. Punjab State Electricity Board (2008) 1 SCC 579 & Kunal Singh Vs. Union of India and another (2003) 4 SCC 524.

Per contra, learned Standing Counsel has submitted that the petitioner was given voluntary retirement at his request ,and once he has accepted all the benefits in furtherance of voluntarily retirement order without any protest, now he cannot turn around and ask for the benefit under Section 47 of Act,1995. Thus, his submission is that he petitioner is estopped in law to claim benefit of Section47 of Act, 1995.

I have heard counsel for the petitioner as well as learned Standing Counsel and perused the record.

It is useful and necessary, in the context of the present case, to notice Section 2(i), 2(o) and 2 (t) the Act, 1995 which defines ''Disability', ''Loco Motor Disability' and ''Person with disability'. Section 2(i), 2(o) and 2 (t) the Act, 1995 are extracted hereinunder:-

2. In this Act, unless the context otherwise requires,-

(i) "Disability" means

(I) Blindness;

(ii) Low vision;

(iii) Leprosy-cured;

(iv) Hearing impairment;

(v) Loco motor disability;

(vi) Mental retardation;

(vii) Mental illness;

(o) "Loco motor disability" means disability of the bones, joints muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy,

(t) "Person with disability" means a person suffering from not less than forty per cent. of any disability as certified by a medical authority;

It transpires from the record that the petitioner has suffered injuries during his service period. It is evident from the certificate issued by the Medical Board that the effect of injury upon the petitioner is equal to loss of all four limbs. Thus, the disability of the petitioner is 100%. According to petitioner, he has suffered "Loco motor disability" which falls under Section 2(i)(v) of Act ,1995. "Loco motor disability" has been defined in Section 2(o) of Act, 1995; which means disability of the bones, joints muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy. As the disability suffered by the petitioner is 100%, and therefore, the petitioner is a ''person with disability' as defined in section 2(t) of Act of 1995.

It is also relevant to notice Section 47 of the Act, 1995 which is reproduced hereinbelow:

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.

Thus, there is a prohibition imposed by Section 47 of the Act, 1995 to dispense with or reduce in rank, an employee who acquires disability during his service.

In the case of Kunal Singh (Supra), the Apex Court, after discussing the scheme of the Act,1995, has held the provisions of the Act , 1995 shall prevail over the other services rules and pension rules. The paragraph no. 9 to 11 of the Apex Court judgment in the case of Kunal Singh (Supra) are reproduced hereinbelow:

"9. Chapter VI of the Act deals with employment relating to persons with disabilities, who are yet to secure employment. Section 47, which falls in Chapter VIII, deals with an employee, who is already in service and acquires a disability during his service. It must be borne in mind that Section 2 of the Act has given distinct and different definitions of "disability" and "person with disability". It is well settled that in the same enactment if two distinct definitions are given defining a word/expression, they must be understood accordingly in terms of the definition. It must be remembered that 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 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; if it is not possible to adjust the employee against any post he will be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. Added to this no promotion shall be denied to a person merely on the ground of his disability as is evident from sub-section (2) of Section 47. Section 47 contains a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing a provision of social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of Section 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service.

10. The argument of the learned counsel for the respondent on the basis of definition given in Section 2(t) of the Act that benefit of Section 47 is not available to the appellant as he has suffered permanent invalidity cannot be accepted. Because, the appellant was an employee, who has acquired 'disability' within the meaning of Section 2(i) of the Act and not a person with disability.

11. We have to notice one more aspect in relation to the appellant getting invalidity pension as per Rule 38 of the CCS Pensions Rules. The Act is a special Legislation dealing with persons with disabilities to provide equal opportunities, protection of rights and full participation to them. It being a special enactment, doctrine of generalia specialibus non derogant would apply. Hence Rule 38 of the Central Civil Services (Pension) Rules cannot override Section 47 of the Act. Further Section 72 of the Act also supports the case of the appellant, which reads: -

"72. Act to be in addition to and not in derogation of any other law. - The provisions of this Act, or the rules made thereunder shall be in addition to, and not in derogation of any other law for the time being in force or any rules, order or any instructions issued thereunder, enacted or issued for the benefits of persons with disabilities."

In the case of Bhagwan Dass (Supra) , the authorities had passed the termination order of the employee as he himself had requested for his retirement on medical ground, the Apex Court set-aside the termination order and directed the authorities to treat him in service till the date of his superannuation. The facts of the instant case are somewhat similar to the facts the case of Bhagwan Dass (Supra). Paragraph no. 19 & 20 of the Apex Court judgment in the case of Bhagwan Dass (Supra) are extracted hereinbelow:

"19. We understand that the concerned officers were acting in what they believed to be the best interests of the Board. Still under the old mind-set it would appear to them just not right that the Board should spend good money on someone who was no longer of any use. But they were quite wrong, seen from any angle. From the narrow point of view the officers were duty bound to follow the law and it was not open to them to allow their bias to defeat the lawful rights of the disabled employee. From the larger point of view the officers failed to realise that the disabled too are equal citizens of the country and have as much share in its resources as any other citizen. The denial of their rights would not only be unjust and unfair to them and their families but would create larger and graver problems for the society at large. What the law permits to them is no charity or largess but their right as equal citizens of the country.

20. In light of the discussions made above, the action of the Board in terminating the service of the disabled employee (appellant No.1) with effect from March 21, 1997 must be held to be bad and illegal. In view of the provisions of Section 47 of the Act, the appellant must be deemed to be in service and he would be entitled to all service benefits including annual increments and promotions etc. till the date of his retirement. The amount of terminal benefits paid to him should be adjusted against the amount of his salary from March 22, 1997 till date. If any balance remains, that should be adjusted in easy monthly installments from his future salary. The appellant shall continue in service till his date of superannuation according to the service records. He should be reinstated and all due payments, after adjustments as directed, should be made to him within six weeks from the date of presentation of a copy of the judgment before the Secretary of the Board."

Thus, it can be safely culled out from the ratio laid down in the judgments of the Apex Court, namely Bhagwan Dass (Supra) and Anil Kumar Mahajan (Supra), that a duty is cast upon the authorities to provide the benefit of Section 47 of the Act, 1995 to an employee who acquires a disability during his service in order to achieve the object of the Act,1995 , and further the provision of the Act,1995 shall prevail over any service rule or pension rule.

In the instant case, it is not disputed that petitioner has suffered total disability during the service, and it was obligatory upon the respondent authorities to provide the benefit of Section 47 of the Act, 1995 to the petitioner; but there is nothing on the record to indicate that the respondent authorities made any effort to adjust the petitioner on any post equivalent to the post he was holding.

The contention of the learned Standing Counsel that since the petitioner had accepted all the benefits given to him in consequence of voluntary retirement orders, thus, he is estopped in law in claiming the benefit of Section 47 of the Act, 1995 does not hold water in the light of the ratio laid down by the Apex Court in the judgments referred hereinabove, and is rejected.

Thus, the order dated 26.02.1997 passed by the Senior Superintendent of Police, Bareilly giving voluntary retirement to the petitioner is illegal, and is in the teeth of Section 47 of the Act, 1995 ,and is, accordingly, set-aside. The petitioner must be deemed to be in service, and would be entitled to all service benefits including annual increments and promotion etc. till the date of his retirement. As the petitioner has crossed the age of superannuation, therefore, his pension and other consequential benefits shall be recalculated treating him to be in service till date of superannuation.

The writ petition is allowed. All the benefits as directed hereinabove shall be paid to the petitioner after adjusting the amount of terminal benefits already paid to him within a period of three months from the date of production of the certified copy of the order.

There shall be no orders as to costs.

Order Date :- 24.11.2017/Ishan