Shri Prakash Vinayak Naik vs Pune Municipal Corporation
2012 Latest Caselaw 422 Bom

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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)                                                
                                   ---

    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

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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

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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

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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

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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,

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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.

In 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

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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.

The 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

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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)