Dhammadip Bhaurao Mankar vs Medical Board
2011 Latest Caselaw 55 Bom

                                       1




                                                                       
     IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR 
                       BENCH NAGPUR.




                                               
              WRIT    PETITION     NO.  4700    OF     2010




                                              
    Dhammadip Bhaurao Mankar,




                                      
    Qrt No. B/47, Kailas Nagar,
    P. O. Sakhra, Tq. Wani, 
                      
    Distt. Yeotmal.                                         PETITIONER.
                     
                                   VERSUS
      


    1] Union of India,
   



    Ministry of Coal, Shastri Bhawan,
    New Delhi-through its Secretary.

    2] Western Coalfields Ltd.,





    Coal Estate, Civil Lines, Nagpur
    through its Chairman-cum-
    Managing Director. 

    3] The President, Handicapped 





    Medical Board, Shri Vasantrao 
    Naik Govt. medical College & 
    Hospital, Yeotmal.                                      RESPONDENTS.

Shri. S. D. Thakur, Counsel for the petitioner. Shri S. C. Mehadia, Counsel for respondent 2.

Shri. N. S. Khubalkar, AGP for the respondent 3.

CORAM: B. P. DHARMADHIKARI &

P. D. KODE JJ.

Date: 15th NOVEMBER 2011.

ORAL JUDGMENT: (Per DHARMADHIKARI J.)

As the matter pertains to provisions of The Persons with

Disabilities (Equal Opportunities, Protection of Rights and Full

Participation) Act, (1995), we have heard the matter finally by

making "Rule" returnable forthwith. This Act is referred to as

1995 Act hereinafter.

2] This Court has on 01.07.2011 and thereafter on

12.07.2011 passed two orders in the matter.

3] Short contention of Shri S. D. Thakur counsel for the

petitioner is, petitioner had suffered disability while in

employment and therefore his case needs to be viewed in the light

of provisions of Section 47 of above mentioned 1995 Act and

the reliance upon provisions of Section 2(t) for that purpose or

then on percentage of disability suffered by petitioner is totally

irrelevant. He is relying upon the judgment of Hon'ble Apex

Court in Kunal Singh Vs. union of India and Another AIR 2003

Supreme Court 1623 for said purpose.

4] Shri Mehadia states that provisions of 1995 Act are

applicable to "persons with disability" and hence the percentage

of disability suffered by petitioner is relevant to find out his

entitlement. Section 47 according to him therefore needs to be

construed in the light of provisions of Section 2(t) and as extent of

disability suffered by petitioner is only 30%, provisions of Section

47 are not applicable in his case. He is relying upon Circular

dated 10.09.2004 issued by respondent no.2 in this respect and he

points out that as alternate job is accordingly provided to

petitioner he is being paid initial wages of the category in which

he has been deployed after that disability. He further states that

judgment of Hon'ble Apex Court does not make any distinction in

this respect and it cannot be held that the extent of disability is

found irrelevant by Apex Court.

5] With the assistance of the learned counsel we have

perused the record. The fact that petitioner suffered disability

while in service is not in dispute. Even extent of his disability i.e.

30% is not in dispute.

6] Provisions of above mentioned 1995 Act in Section 2(i)

define "disability". Percentage of disability is not stipulated in

this provision. Section 2(t) defines "persons with disability" and

legislature has chosen to specify that it means a person suffering

from not less than forty percent of any "disability" as certified by a

medical authority.

7] In this background, we have perused other provisions in

the 1995 Act, Chapter VI deals with employment and Section 32

requires appropriate Government to identify the posts which can

be reserved for "persons with disability". The provisions of

Section 33 prescribe a particular percentage of reservation for

such "persons with disability". Section 34 which deals with

Special Employment Exchange contemplates furnishing of such

information or return by employer in relation to vacancies and

appointments made of "persons with disability". Section 36

contemplates carrying forward of such vacancies when such

"person with disability" is not available. Section 38 contemplates

a scheme for ensuring employment of persons having disabilities.

It is, therefore, obvious that when recruitment is to be effected,

the legislature has used phrase "person with disability" and hence

at that time importance is given to the extent of disability.

Situation regulated is when a person already disabled is required

to be extended employment. Such person is entering the service

for the first time.

8] As against this when provisions of Section 47 are looked

into, it speaks of an employee who acquires disability during his

service. Section 47 does not treat such employee and does not

refer to him any where as "person with disability". Thus

employee already in service acquiring disability on account of his

employment has been treated distinctly by legislature. It is

because of this position only that his service conditions appear to

have been protected. The legislature has stated that if on account

of such disability, he is not suitable for the post which he was

earlier holding, employer can shift him to some other post, "with

same pay scale and service benefits". The difficulty faced by

employer in undertaking such exercise is also foreseen by law and

proviso to this Sub Section contemplates a case where it is not

possible for employer to adjust the employee against any post.

The legislature has prescribed that in that case such employee

should be kept on a supernumerary post until a suitable post is

available or then the employee who acquired disability attains the

age of superannuation. Thus provisions made by legislature are

by way of exception to normal law and therefore show emphasis

upon its intention to protect service i.e. pay scale and service

benefits of person who acquired disability while in employment.

It is also evident from Sub Section (2) of Section 47 which

stipulates that promotion cannot be denied to such a person

merely on the ground of his disability. Sub Section (2) permits

appropriate Government to grant exception from this

requirement but then present respondent no. 2 has not claimed

any exemption.

9] It is, therefore, apparent from scheme of above

mentioned 1995 Act that the person who acquires disability

while in employment has not been treated as "person with

disability" and provisions of Section 2(t) are therefore irrelevant

in his case.

10] In the judgment of Apex Court in Kunal Singh Vs.

Union of India (supra) Hon'ble Apex Court in para 7 has noted

that under Section 2 "disability", and "person with disability" are

separately defined and they are distinct concepts.

11] We do not see any reason to take different view as

petitioner has suffered only 30% disability. He is beneficiary of

welfare provision in Section 47. In this situation Writ Petition

deserves to be allowed. Accordingly we quash and set aside the

impugned communication dated 9/23rd March 2010. At this

stage, Shri Mehadia learned counsel states that surviving dispute

is about payment of arrears of salary as petitioner is already

accommodated in terms of Section 47 of the 1995 Act. Therefore,

we direct respondent no.2 to release to petitioner difference of

salary payable to him on this count within a period of six months

from today. Amount of Rs. 1,00,000/- (Rupees One Lac) already

in deposit with the Registry of this Court is allowed to be

withdrawn by the petitioner. The amount so withdrawn shall be

adjusted against the amount found due and payable to petitioner.

Petition is thus allowed. No costs.

                              JUDGE                                 JUDGE





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