Andhra Pradesh High Court - Amravati
Union Of India vs K Anthony Francis on 14 February, 2023
HIGH COURT OF ANDHRA PRADESH: AMARAVATI
HON'BLE MR. JUSTICE D.V.S.S. SOMAYAJULU
&
HON'BLE MR.JUSTICE BANDARU SYAMSUNDER
W.P. No.40684 of 2022
O R D E R:
(per D.V.S.S.Somayajulu, J)
This writ petition is preferred by the Union of India
questioning the order passed in O.A.No.141 of 2022 dated
02.08.2022.
2. This Court has heard Sri N.Harinath, Deputy Solicitor
General appearing for the petitioners and Sri A.Sai Rohit for the
learned counsel for the respondents.
3. The issue raised in this Court is about the entitlement of the
1st respondent herein for certain benefits for the period from
05.01.2000 to 25.02.2015. In this period, the 1st respondent was
held to be "not on duty".
4. Admittedly, as pointed out by the learned Deputy Solicitor
General, the 1st respondent is suffering from a serious disability
i.e. acute Schizophrenia. He had earlier been subjected to
disciplinary proceedings which also were challenged in the course
of time. Ultimately, by an order dated 06.09.2021 in WP.No.8758
of 2021, the petitioner was given an opportunity to submit a
representation along with all his medical certificates and the
respondent-Union was directed to reconsider the matter and to
decide whether the period 05.01.2000 to 24.02.2015 should be
treated as 'on duty' or not. These dates assumed great
importance as per the learned Deputy Solicitor General because;
the 1st respondent herein submitted an appropriate and proper
certificate under the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act,
1995 (for short 'the Disabilities Act') in February, 2015 only.
Learned counsel submits that this aspect was totally overlooked
when the impugned order was passed in the O.A. Learned Deputy
Solicitor General in all fairness submits that the earlier
proceedings are not really relevant for the purpose of the decision
and they are not in dispute between the parties. It is his
contention that the petitioner has already received whatever is due
to him towards pay and allowances and the amount was deposited
into the petitioner's account. The petitioner submitted his
disability certificate dated 25.02.2015 with 70% disability on
29.04.2015 and thereafter he was kept in a supernumerary post
as per the provisions of the Disabilities Act. Ultimately, it is his
submission that the CAT failed to appreciate the fact that the
medical certificate would only indicate the percentage of disability
on the date of the certificate and there is no proof to show that the
1st respondent was suffering from a disability from January, 2000
to February, 2015 for the said period is to be treated as 'on duty'.
Therefore, learned Deputy Solicitor General submits that this is a
fit case in which this Court should interfere.
5. In reply to this, learned counsel for the respondents submits
that the available record shows that the 1st respondent in the writ
petition has been suffering from a serious mental illness from
1995 onwards. For this reason alone, earlier disciplinary
proceedings were commenced and concluded. However, in all
fairness, he submits that they are not very relevant for the sake of
the present dispute. He points out that the 2nd respondent is the
aged mother of the 1st respondent. She has been agitating his
case and all the earlier litigations ended in favour of the 1st
respondent. As far as the present issue is concerned, it is
submitted that the 1st respondent was removed from service on
05.01.2000. Later, after succeeding in the litigations, he was kept
in a supernumerary post with effect from 25.02.2015 as per the
provisions of the Disabilities Act. This period dated 05.01.2000 to
25.02.2015 is to be treated as 'on duty' and the petitioner should
not be deprived of any of the benefits which he would otherwise
get. The learned counsel particularly relies upon section 47 of the
Disabilities Act to argue that even if it is not possible to adjust a
person suffering from a disability against any post, he should be
kept in a supernumerary post until a suitable post is available or
he attains the age of superannuation. It is also submitted by
relying upon section 47(1) and the proviso that no discrimination
can be meted out to a person with any disability and if he is not fit
to work in any post, he should be shifted to some other post with
the same pay and scale. It is also submitted that relying upon
this section, the Administrative Tribunal rightly passed the order
in question. Learned counsel also submits that the Tribunal
relied upon section 47 of the Disabilities Act, Office Memorandum
of DOPT dated 25.02.2015 and the judgment of the Hon'ble
Supreme Court in the case of Kunal Singh v. Union of India1 to
come to the conclusions. He, therefore, submits that the
impugned order is correct in all respects.
6. As noticed, during the course of the submissions, there is no
serious dispute about the facts of the case. The 1st respondent is
suffering from acute schizophrenia. It is also not in dispute that
there were earlier proceedings, departmental and otherwise
against the 1st respondent. In view of his medical disability, he
was put in a supernumerary post by virtue of the provisions of
section 47 of the Disabilities Act. The only question that arises for
consideration is, whether the period from 05.01.2000 (date of
termination) till 25.02.2015 (date of appointment in
supernumerary post) should be treated as dies-non or not.
7. Section 47 of the Disabilities Act is very clear. It clearly
states that no Government employee who acquires a disability
during his service shall be discriminated against. His services
cannot be dispensed with nor can he be reduced in rank. If it is
found that he is not suitable to any post, he should be shifted to
some other post with the same pay scale and service benefits. If
(2003) 4 SCC 524
this is also not possible, he should be kept in supernumerary post
until a suitable post is available or till he attains superannuation.
He cannot be denied promotions also. This is the sum and
substance of section 47 of the Disabilities Act.
8. The Hon'ble Supreme Court of India had an occasion to
interpret the provisions of this Act. In the judgment reported in
State Bank of Patiala and others v. Vinesh Kumar Bhasin2, it
is held as follows:
'29. The grievances and complaints of persons with
disabilities have to be considered by courts and authorities
with compassion, understanding and expedition. They seek a
life with dignity. The Disabilities Act seeks to provide them a
level playing field, by certain affirmative actions so that they
can have adequate opportunities in matters of education and
employment. The Act also seeks to ensure non-discrimination
of persons with disabilities, by reason of their disabilities....'
9. If this case is examined against the backdrop of this law, it is
clear that the petitioner deserves a sympathetic hearing.
Provisions of section 47 of the Disabilities Act were also
considered in the DOPT circular dated 25.02.2015, which is
(2010) 4 SCC 368
reproduced in the CAT order. It is also admitted that since long
i.e. from 03.05.1996, the 1st respondent has been suffering from a
mental illness. Ultimately, the removal from service was ordered
on 05.01.2000. Later, in view of section 47 of the Disabilities Act,
he was placed in a supernumerary post on 25.02.2015.
Admittedly, denial of treatment of this period as dies-non would
cause financial and other loss to the petitioner. In the opinion
of this Court, it would also amount to discrimination which is
dealt with and prohibited by section 47 of the Disabilities Act. For
no fault of his, the petitioner would be penalized, if this period is
treated dies-non. Admittedly, a supernumerary post is given to
the 1st respondent on 25.02.2015. Therefore, in the opinion of
this Court, the petitioner is entitled to a relief.
10. This Court also notices that parties to the litigation were also
before the Division Bench of this Court in WP.No.8758 of 2021.
The order passed by this Division Bench has become final. In
para 10, the Division Bench clearly held that since the petitioner
was suffering from mental illness from a long time, the beneficial
impact of the Disabilities Act should not be restricted to the date
on which the certificate is issued and the petitioner should not be
disadvantaged due to the disability arising out of the mental
illness. This finding as mentioned earlier has also become final
and is binding upon present petitioners.
11. Therefore, after considering the submissions and the law on
the subject, this Court is of the opinion that denying the relief
sought would amount to discrimination and denial of a statutory
benefit. The Disabilities Act being a beneficial legislation is to be
considered liberally and the purpose of the enactment should be
advanced by this Court.
12. This Court concludes that there are no merits in the writ
petition. Accordingly, the writ petition is dismissed confirming the
order dated 02.08.2022 passed by the Central Administrative
Tribunal in O.A.No.141 of 2022. No order as to costs. Pending
miscellaneous applications, if any, shall stand closed.
__________________________
D.V.S.S. SOMAYAJULU,J
____________________________
BANDARU SYAMSUNDER,J
Date: 14.02.2023
KLP
