Havaldar No.831190281 Om Prakash ... vs Union Of India And Others
2021 Latest Caselaw 8593 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 33
 

 
Case :- WRIT - A No. - 2804 of 2008
 

 
Petitioner :- Havaldar No.831190281 Om Prakash Singh
 
Respondent :- Union Of India And Others
 
Counsel for Petitioner :- Ravi Shankar Prasad,Akhilesh Kumar Dubey,Jeetendra Singh,R.K.Paramhans Singh
 
Counsel for Respondent :- A.S.G.I.,Anil Pathak,Pooja Agarwal
 

 
Hon'ble Ashwani Kumar Mishra,J.

Heard learned counsel for the parties.

Petitioner was substantively appointed as constable in C.R.P.F. He was promoted to the post of Hawaldar. While undergoing training on the post of Hawaldar, the petitioner met with an accident and was removed from service on 11.12.1999 on the ground of his physical disability. Petitioner nevertheless was sanctioned disability pension. The order, discontinuing petitioner's engagement, came to be challenged before this Court in Writ Petition No. 53528 of 1999. This petition was allowed by this Court after relying upon the provisions contained under Section 47 of the Person with Disabilities (Equal Opportunities, Protection of Right and Full Participation) Act, 1995 (hereinafter referred to as 'Act, 1995'), which is extracted hereinafter:

"47. Non-Discrimination in Government employment:-(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."

This Court opined that denial of employment to the petitioner on account of his disability caused during the training period would go contrary to the statutory mandate contained under Section 47 of the Act, 1995.

The Inspector General, C.R.P.F. consequently has passed an order on 06.09.2005 reinstating the petitioner in service. However, for the period petitioner remained out of employment i.e. from 11.12.1999 to 06.09.2005 the petitioner has been denied benefit of salary and continuity in service following the principles of 'no work no pay'.

Representation apparently was filed against this order and thereafter a fresh Writ Petition No. 1958 of 2006 was filed, in which the matter was directed to be considered. The Inspector General vide his order impugned dated 25.10.2007, has rejected petitioner's claim for arrears and continuity in service between 11.12.1999 to 06.09.2005 relying upon Clause 54-A (2)[ii] of the Fundamental Rules. Aggrieved by this order the petitioner is before this Court.

Learned Senior Counsel for the petitioner submits that Clause (2) of Fundamental Rules 54-A would have no applicability in the facts of the present case, inasmuch as the case of the petitioner would be governed by the previous clause i.e. Clause (1) of Fundamental Rules 54-A. Submission is that the order impugned suffers from complete non-application of mind, with reference to the relevant provisions.

In order to appreciate the argument advanced, it would be appropriate to take note of Clause (1) and (2) of the Fundamental Rules 54-A, which are reproduced herein below:-

"F.R.54-A.(1) Where the dismissal, removal or compulsory retirement of a Government servant is set aside by a Court of Law and such Government servant is reinstated without holding any further inquiry, the period of absence from duty shall be regularized and the Government servant shall be paid pay and allowances in accordance with the provisions of sub-rule (2) or (3) subject to the directions, if any, of the Court.

(2)(i) Where the dismissal, removal or compulsory retirement of a Government servant is set aside by the Court solely on the ground of non-compliance with the requirements of Clause (1) or Clause (2) of Article 311 of the Constitution, and where he is not exonerated on merits, the Government servant shall, subject to the provisions of sub-rule(7) of Rule 54, be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been dismissed, removed or compulsorily retired, or suspended prior to such dismissal, removal or compulsory retirement, as the case may be, as the competent authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him, in that connection within such period 9which in no case shall exceed sixty days from the date on which the notice has been served) as may be specified in the notice:

(ii) The period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding such dismissal, removal or compulsory retirement, as the case may be, and the date of judgment of the Court shall be regularized in accordance with the provisions contained in sub-rule(5) of Rule 54."

Sub-clause (1) of Fundamental Rules 54-A applies where the case of dismissal, removal or compulsory retirement of a government servant is set aside by a Court of law and such government servant is reinstated without any further inquiry, then the period of absence from duty has to be regularized and the government servant is also to be paid pay and allowances in accordance with the provisions of Sub-Rules (2) and (3) subject to the any direction of this Court.

This Court in Writ Petition No. 53528 of 1999 has already quashed the order of discharge passed against the petitioner on 11.12.1999. A further direction has been issued to consider petitioner's claim in terms of Section 47 of the Act, 1995. The respondents have, in fact, granted relief of reinstatement to the petitioner.

In such circumstances, this Court finds substance in the argument advanced by the learned counsel for the petitioner, as per which the applicable clause in the facts of the present case would be Clause (1) of Fundamental Rules 54-A, and the petitioner would be entitled to pay and allowances in terms of sub-clause (2) and (3). Even otherwise in the event such relief is denied to the petitioner, it would clearly be arbitrary and illegal act on the part of the respondents themselves. The provision is absolutely clear, inasmuch as the petitioner was entitled to the protection under Section 47 of the Act, 1995 and the discharge order passed against him was invalid.

In such circumstances, the petitioner ought to have been retained in service and would have been entitled to pay and allowances in accordance with law. It was only because of the order of the authorities, which has already been quashed by this Court, that the petitioner was kept out of employment. There was no default on the part of the petitioner in performing his duties.

Learned counsel for the respondents although has tired to justify the order under challenge in this petition but has not been able to point out any provision in the fundamental rules, which may justify the impugned direction.

In view of the above discussion, this Court finds that the impugned action of denial of salary to the petitioner for the period between 11.12.1999 to 06.09.2005 cannot be sustained. Orders impugned contained as Annexures- 1 and 2 to the writ petition stands quashed. The writ petition stands allowed.

The respondents are directed to compute and release pay and allowances to the petitioner in terms of Clause (1) of the Fundamental Rules 54-A and to pay the same to the petitioner within a period of four months from the date of presentation of a copy of this order.

The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the petitioner alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.

The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

Order Date :- 26.7.2021

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