Chattisgarh High Court
Kiran Rathi vs State Of Chhattisgarh on 14 October, 2022
Page 1 of 20
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved on : 19-7-2022
Pronounced on: 14-10-2022
WPS No. 5026 of 2020
Kiran Rathi W/o Ramesh Kumar Rathi Aged About 60 Years R/o R-3/9
Rama Valley Bodri Bilaspur, Chhattisgarh. Filing Through Ramesh
Kumar Rathi, S/o Late Bansilal Rathi, Aged About 63 Years R/o R-3/9
Rama Valley Bodri Bilaspur, Chhattisgarh, As The Petitioner Is
Unconscious (In Vegetative State)
---- Petitioner
Versus
1. State of Chhattisgarh Through Secretary, Department Of Law
And Legislative Afairs, Mantralaya Mahanadi Bhawan, Atal
Nagar, Naya Raipur, District Raipur, Chhattisgarh
2. The Joint Director Treasury, Accounts And Pension, Raipur,
Chhattisgarh
3. The District And Sessions Judge District Raipur, Chhattisgarh
4. The High Court Of Chhattisgarh Through Registrar General,
High Court Of Chhattisgarh, Bilaspur, Chhattisgarh
---- Respondents
For Petitioner : Mr. Sourabh Dangi and Mr. Priyank
Rathi, Advocates.
For State : Mr. Vaibhav Singh, PL
For Respondents 3 & 4. : Mr. Ranbir Singh Marhas, Advocate.
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Hon'ble Shri Justice Narendra Kumar Vyas
CAV ORDER
1. The instant writ petition has been filed by the petitioner claiming
the arrears of salary for the period from 1 st July, 2010 till 30th
August, 2016 which has not been paid to the petitioner and also
claiming promotions which she was entitled to get along with all
consequential service benefits including various allowances
applicable to a judicial officer and encashment of earned leave
which would have accumulated during the aforesaid period in
lieu of Section 47 of The Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act,
1995 (here-in-after referred to as PWD Act").
2. The facts of the case, in brief, are that the petitioner joined the
Chhattisgarh Lower Judicial Services on 18-1-2006, vide order
dated 19.01.2006 was appointed as Civil Judge, Class II and
posted as IIIrd Civil Judge, Class II, Raigarh. In the intervening
night of 27/28-3-2010, the petitioner has suffered hypoxic brain
damage due to shortage of oxygen supply to her brain during the
cardiac arrest and since then she has become unconscious.
This court directed the petitioner to appear before the Medical
Board for physical examination. Thereafter, she was served with
an invalidation order issued by the Principal Secretary,
Department of Law and Legislative Affairs, Government of
Chhattisgarh and her services were invalidated under Rule 18(2)
(a) of the Chhattisgarh Civil Services (Leave) Rules 2010 (For
short, "the Rules 2010) without any provision whatsoever for
pensionary benefits, arrears of salary (back-wages), allowances
and other service benefits etc., which the petitioner is lawfully
entitled to get as per Section 47 of the PWD Act, 1995.
Therefore, present writ petition has been filed claiming the
benefits as mentioned in aforesaid paragraph.
3. Thereafter, the Full Court of this High Court has recommended
to grant extraondinary leave for the period from 02.08.2010 to
29.08.2016 and in pursuance of the recommendation,
respondent No. 1/ the Department of Law and Legislative Affairs,
Government of Chhattisgarh passed an order on 27-7-2019
(Annexure P/6) sanctioning extraordinary leave from 2-8-2010
to 29-8-2016. These orders were assailed by the petitioner by
filing the present writ petition under Article 226 of the
Constitution of India.
4. Learned counsel for the petitioner would submit that the
petitioner is 100% disabled and unconscious and this fact has
been certified by the Medical Board, as such, she was declared
unfit for employment. Invalidation of petitioner's services and
denial of service benefits including salary, promotion, increments
amongst other things is discriminating her on the basis of her
disability which is bad-in-law. He would further submit that the
order dated 27-7-2019 whereby the period from 2-6-2010 to 29-
8-2016 is treated as extraordinary leave, is bad-in-law as the
said period has to be considered as period on duty. It has been
further contended that the petitioner acquired 100% disability
while being in service and acting as a judicial officer. Thus, as
per the PWD Act 1995 she could not have been dispensed with,
reduced in rank, till her superannuation ie., on 30-4-2020. He
would further submit that no order with regard to service can be
passed once an employee is retired from the post. The effect of
invalidation is superannuation wherein the person is eligible for
invalidation pension. He would further submit that the
respondents may be directed to grant all consequential service
benefits including various allowances applicable to a judicial
officer as also encashment of earned leave which would have
accumulated during the period from July 2010 till 30-8-2016 and
set aside the invalidation order dated 30-8-2016 (Annexure P/5)
and the order dated 27-7-2019 (Anmnexure P/6).
5. The State has filed their return mainly contending that the
services of the petitioner have been invalidated in terms of Rules
18(2)(a) of the Rules 2010 vide order dated 30-8-2016 in view of
the resolution passed by the High Court of Chhattisgarh,
Bilaspur and on the basis of medical report submitted by the
Medical Board suggesting that the petitioner cannot be cured
completely and that she is unfit on account of hypoxic brain
damage and in all likelihood she cannot function as a Judicial
Officer in future.
6. The respondents No. 3 and 4, have filed their return mainly
contending that the petitioner being totally disabled to perform
her duty as a Judicial Officer, could not have been dispensed
with, reduced the rank, till her superannuation ie., 30-4-2020 in
view of Section 47 of the Rights of Persons with Disability Act,
2016 (For short, "RPWD Act, 2016), but the case of the
petitioner does not fall within the purview of the PWD Act, 1995
or the RPWD Act, 2016 as she is not suffering from disability as
defined in Section 2(2)(a) of the RPWD Act, 2016. It has been
further contended that from bare perusal of the schedule,
disability has been defined into four parts namely Locomotor
Disability, Visual impairment, Hearing impairment and Speech
and Language Disability and Intellectual Disability, Mental
behaviour and Disability Caused due to chronic neurological
condition, Blood Disorder and Multiple Disability and any other
category as may be notified by Central Government. As per the
literal meaning of the provision, the petition cannot be said to be
falling under any of the aforesaid disability to get protection of
Section 20 of the RPWD Act, 2016. It has been further
contended that from the averments made by the petitioner it is
quite vivid that the petitioner on account of cardiac arrest is
suffering from a disease known as Hypoxic Brain Damage and
has suffered diagnosed to have DM ie., Diabetes Mellitus, HTN
ie., Hypertension, DCM ie., Diabetic Cardio Myopathy which is
also known as Myocardial Dysfunction and the condition of the
petitioner does not fall in any of the heads of disability as defined
in PWD Act 1995 and RPWD Act, 2016 and after examining the
medical report and considering the fact that she is completely
incapacitated to work, the invalidation order has been issued by
the Government of Chhttisgarh, in pursuance of the resolution
passed by the High Court of Chhattisgarh with the condition that
if in future her medical condition improves and she is found fit to
work then she can approach the High Court for reconsideration
of her case, but her condition has not improved till she attained
the age of superannuation.
7. Learned counsel for respondents No. 3 & 4 would further
contend that vide order dated 9-2-2018 leave and earned leave
were sanctioned for the period from 29-3-2010 to 1-6-2010 and
salary for the said period has already been paid as per order
dated 09.02.2018 after adjusting the same, no earned leave was
left in her leave account. It has been further contended that the
petitioner was appointed after 1-1-2004, therefore, she is not
entitled to get pensionary benefits and accordingly memo dated
7-10-2010 was forwarded by the respondent No.2 the Joint
Director, Treasury, Accounts and Pension, Raipur. It has been
further contended that the petitioner is not disabled person, but
is completely incapacitated to work as she is unconscious and,
therefore, in the absence of specific provision in this regard or
judicial verdict, the petitioner cannot be granted benefits of the
provisions of either PWD Act, 1995 or RPWD, Act, 2016. It has
been further contended that Rs.2,22,900/- was paid to the
petitioner for medical allowances and sumptuary allowance
which was ordered to be recovered from the petitioner since
extraordinary leave for the period from 2-6-2010 to 29-8-2016
was sanctioned later on. As per Rule 36 (1) (4) of Chhattisgarh
Civil Services (Leave) Rules 2010, a Government
officer/employee is not entitled to get any salary or allowance
during extraordinary leave sanctioned to him and accordingly
order dated 18-6-2020 (Annexure R/4) was issued. It has been
further contended that in the present case, the provisions of Act
1995 and 2016 are not applicable in the case of the petitioner
and would pray for dismissal of the writ petition.
8. The petitioner has filed rejoinder to the return filed by the
respondents No. 1 and 2/State as well as by respondents No. 3
and 4 mainly contending that RPWD Act 2016 has a more
inclusive definition of "persons with disability" as such, the
petitioner's case falls within the Act of 2016. It has been further
contended that as per scheme of RPWD Act 2016 that "person
with disability" and "person with benchmark disability" are treated
as separate categories of individuals having different rights and
protections and a third category of individuals "persons with
disability" having high support needs" has also been defined
under the RPWD Act 2016 and would submit that the petitioner
is a person with disability under Section 2(s) of the RPWD Act
2016 who is 100% disabled, completely bed ridden and
unconscious (in coma) on account of suffering Hypoxic Brain
Damage since 27/28-3-2010 when she suffered a cardiac arrest
with 100% long term physical, mental, intellectual as well as
sensory impairment. The contention raised by the respondents
that the petitioner is not a person with benchmark disability
would defeat the very object and purpose of the Act for which the
enactment has been made and would submit that in view of
Section 47 of the old Act, 1995 and Section 20 of the RPWD Act
2016, the petitioner is in-fact entitled to get full salary,
increments, allowances and other benefits for the period from
July 2010 till April 2020 ie., the date of her superannuation.
Learned counsel for the petitioner would vehemently argue that
the petitioner is entitled to get protection of Section 20 of the
RPWD Act 2016 as it provides non discrimination in employment
as disability suffered by the petitioner falls within the category of
disability as provided in Section 2 (i) supports category. In
support of arguments, he has referred to the judgment of Hon'ble
Supreme Court in the case of Kunal Singh vs. Union of India
and another1, Bhagwan Dass and another vs. Punjab State
Electricity Board2, Anil Kumar Mahjan vs. Union of India3,
Parvesh Devi vs. State of Haryana and others4, Vikash
Kumar vs. Union Public Service and others5,
M.Venkateswarulu vs. Andhra Pradesh State Road
Transport6, V Palani vs. Metropolitian Transport Corp. Ltd. 7,
State of Punjab and others vs. Rafiq Masih and others 8,
Sahib Ram vs. State of Haryana and others 9, Bihar State
Electricity vs. Bijay Bhadur and another 10, Syed Abdul Qadir
vs. State of Bihar and others11, Babulal Jain vs. State of M.P.
and others12, Goodyear India Ltd. vs. Collector of Customs
Bombay13
9. On the other hand, learned counsel for the State would submit
that in view of the decision taken by the High Court, the State
has passed the order granting petitioner's extraordinary leave as
she has become 100% unable to discharge the judicial work,
therefore, the order passed by the State is legal and justified and
learned counsel appearing for the High of Chhattisgarh would
support the submission of learned counsel for the State and
1 (2002) 4 SCC 524
2 (2008) 1 SCC 579
3 2013 (7) SCC 243
4 N.C.W.P. 5715 of 2005
5 (2021) 5 SCC 370
6 2016 SCC Hyd 13
7 (2014) SCC Mad 1300
8 (2015) 4 SCC 334
9 (1995) 1 SCC 18
10 (2000) 10 SCC 99
11 (2009) 3 SCC 475
12 (2007) 6 SCC 180
13 (2000) 10 SCC 489
would submit that since the petitioner was incapacitated to
discharge the judicial work, therefore, the leave for a period
from 2010 to 2016 has been granted which is legal and justified
and the petitioner has already attained the age of
superannuation in the year 2020, therefore, the action taken by
them is legal, justified and does not warrant any interference and
would pray for dismissal of the writ petition.
10. I have heard learned counsel for the parties and perused all the
documents with utmost satisfaction.
11. The issues require to be determined by this court in the present
case are -
(i) whether the petitioner can be granted
protection of PWD Act 1995 or RPWD Act,
2016 in view of specific condition of the
petitioner as she is completely incapacitated to
perform judicial work being Judicial Officer in
lower judiciary cadre as per invalidation order
dated 30-8-2016 (Annexure R/1) and her
disability Hypoxic Brain Damage falls
within the categories of disabilities
defned under the PWD Act and RPWD
Act or not?
(ii) whether the action of the respondent in
granting extraordinary leave in view of specific
facts and circumstances of the case vide order
dated 27-7-2019 for the period from 20-6-2010
to 29-8-2016 was justified? and
(iii) whether the State Government was
justified in denying the salary during
extraordinary leave period to the petitioner in
view of the Rule 36(4) of the Rules 2019.
12. For better understanding the issue raised in this petition, it is
expedient for this court to examine the relevant Sections
Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995, Rights of Persons with
Disabilities Act, 2016 and relevant Rules of Chhattisgarh Civil
Services (Leave) Rules 2010 which have been framed under
Article of 309 of the Constitution of India, relevant portion thereof
is extracted as under.
Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act,
1995,
"2(i) Disability means-
(I) blindness;
(ii) low vision;
(iii) leprosy -cured;
(iv) hearing impairment;
(v) locomotor disability;
(vi) mental retardation;
(vii) mental illness.
2(s) "notifcation" means a notifcation
published in the Ofcial Gazette;
2(t) "person with disability" means a
person sufering from not less than forty
percent of any disability as certifed by a
medical authority.
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
benefts;
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 notifcation and
subject to such conditions, if any, as may be
specifed in such notifcation, exempt, any
establishment from the provisions of this
section.
Rights of Persons with Disabilities
Act, 2016
"2 (i) "high support" means an intensive
support, physical, psychological and
otherwise, which may be required by a
person with benchmark disability for daily
activities, to take independent and informed
decision to access facilities and participating
in all areas of life including education,
employment, family and community life and
treatment and therapy;
(r) "person with benchmark disability" means a
person with not less than forty per cent. of a
specifed disability where specifed disability
has not been defned in measurable terms
and includes a person with disability where
specifed disability has been defned in
measurable terms, as certifed by the
certifying authority;
(s) "person with disability" means a person with
long term physical, mental, intellectual or
sensory impairment which, in interaction
with barriers, hinders his full and efective
participation in society equally with others;
(t) "person with disability having high support
needs" means a person with benchmark
disability certifed under clause (a) of sub-
section (2) of section 58 who needs high
support;
20. Non-discrimination in employment.--(1) No
Government establishment shall discriminate
against any person with disability in any
matter relating to employment: Provided
that the appropriate Government may,
having regard to the type of work carried on
in any establishment, by notifcation and
subject to such conditions, if any, exempt
any establishment from the provisions of this
section. (2) Every Government establishment
shall provide reasonable accommodation
and appropriate barrier free and conducive
environment to employees with disability. (3)
No promotion shall be denied to a person
merely on the ground of disability. (4) No
Government establishment shall dispense
with or reduce in rank, an employee who
acquires a disability during his or her
service: Provided that, if an employee after
acquiring disability is not suitable for the
post he was holding, shall be shifted to some
other post with the same pay scale and
service benefts: 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. (5) The
appropriate Government may frame policies
for posting and transfer of employees with
disability.
58. Procedure for certification.--(1) Any person
with specified disability, may apply, in such
manner as may be prescribed by the Central
Government, to a certifying authority having
jurisdiction, for issuing of a certificate of
disability. (2) On receipt of an application under
sub-section (1), the certifying authority shall
assess the disability of the concerned person in
accordance with relevant guidelines notified
under section 56, and shall, after such
assessment, as the case may be,-- (a) issue a
certificate of disability to such person, in such
form as may be prescribed by the Central
Government; (b) inform him in writing that he
has no specified disability. (3) The certificate of
disability issued under this section shall be
valid across the country."
The relevant Leave Rules framed under
Article 309 of the Constitution of India reads
as under.
"31. Extra-ordinary Leave.- (1) Subject to the
provisions of rule 11, extraordinary leave
may be granted to a Government servant in
the following special circumstances:- (a)
when no other kind of leave is admissible, or
(b) when any other kind of leave is
admissible, but the Government servant
applies in writing for the grant of extra-
ordinary leave. (2) The authority competent
to grant leave may retrospectively convert
period of absence without leave into extra
ordinary leave even when any other kind of
leave was admissible at the time when
absence without leave commenced (3) Extra-
ordinary leave shall not be sanctioned to a
Government servant during the period of
notice given by him/her for seeking
voluntary retirement. (4) Extra ordinary
leave shall not be debited to the leave
account.
36. Leave Salary.- (1) A Government servant
who proceeds on earned leave is entitled to
leave salary equal to the pay drawn
immediately before proceeding on earned
leave: Provided that, if a Government
servant on deputation to foreign service in
India or ofciating on a higher post, on
reversion to his original post/cadre proceeds
on earned leave without joining the post of
his reversion, shall be entitled to draw leave
salary equal to the pay which he would have
drawn, but for his appointment to higher
Post, immediately before proceeding on
earned leave. Note- In respect of any period
spent on foreign service out of India, the pay
which the Government servant would have
drawn if on duty in India, but for foreign
service out of India, shall be substituted for
the pay actually drawn while calculating
leave salary. 19 (2)A Government servant on
half pay leave or leave not due is entitled to
leave salary equal to half the amount
specifed in sub-rule (1). (3)A Government
servant on commuted leave is entitled to
leave salary equal to the amount admissible
under sub-rule (1). (4)A Government servant
on extra-ordinary leave is not entitled to any
leave salary. (5)In the case of a person to
whom the Employees' State Insurance Act,
1948(34 of 1948) applies, leave salary
payable during leave, other than earned
leave, shall be reduced by the amount of
beneft admissible under the said Act for the
corresponding period. (6)(a) If, in the case of
a Government servant who retires or resigns
from service, the leave already availed of is
more than the credit so due to him
necessary adjustment shall be made in
respect of leave salary, if any overdrawn. (b)
Where the quantum of earned leave already
availed of by a Government servant who is
dismissed or removed from service or who
dies while in service is in excess of the leave
credited under clause (b) of sub-rule (2) of
rule 26, the over payment of leave salary
shall be recovered in such cases. (7)A
Government servant who is granted leave
earned by him during the period of re-
employment shall be entitled during such
leave to leave salary as admissible under
this rule, reduced by the amount of pension
and pension equivalent of other retirement
benefts.
13. From the facts of the case, it is quite vivid that the petitioner
has been incapacitated because of hypoxic brain damage
and she is unable to discharge the judicial work. Considering
this aspect of the matter and after obtaining medical report
the High Court has recommended the Government to
invalidate the petitioner on 30-07-2016. This is not the
disputed fact between the petitioner and the respondents.
Therefore, this Court has to examine whether the petitioner
can be given any protection in view of PWD Act 1995 or
RPWD Act, 2016. From bare perusal of Sections 2(i), 2(s), 2(t)
of Act, 1995 and Section 47 of the Act provides non-
discrimination in government employment. The section
provides that no establishment shall dispense with, or reduce
in rank an employee who acquire a disability during his
service and the disability has been defned in Section 2(i) of
the Act, which means blindness, low vision, leprosy- cured,
hearing impairment, locomotor disability, mental retardation
& mental illness. These disabilities have been further defned
in Section 2(n), 2(o), 2(q) & 2(r) of the Act of 1995. From
perusal of the disabilities, it is quite vivid that the petitioner's
disabilities Hypoxic Brain Damage does not fall within the any
of the categories defned in the Act of 1995.
14. From bare perusal of Sections 2(s), 2(r) and 2(t) of the Act of
2016 and Section 34 of the Act, 2016, it is quite vivid that
appropriate Government shall appoint the every government
establishment not less than 4% of the total number of
vacancy in the cadre strength in each group of posts being to
be flled a person with disability of which 1% each shall be
reserved for person with benchmark disability under clause a,
b & c and 1% for person with benchmark disability under
clause d & e. This section defnes the disabilities as under:-
"(a) blindness and low vision; (b) deaf
and hard of hearing; (c) locomotor
disability including cerebral palsy, leprosy
cured, dwarfsm, acid attack victims and
muscular dystrophy; (d) autism,
intellectual disability, specifc learning
disability and mental illness; (e) multiple
disabilities from amongst persons under
clauses (a) to (d) including deaf-blindness
in the posts identifed for each
disabilities."
From the above disabilities as provided in the Act of 2016, it
is quite vivid that the petitioner's disability i.e. Hypoxic
Brain Damage does not fall within any of the category as
provided in Section 2(r), 2(s), 2(t) of the Act.
15. The petitioner has become incapacitated to discharge the
judicial work therefore, the petitioner cannot be granted
protection of the PWD Act, 1995 & RPWD Act, 2016 for the
reason that his disability does not fall within any of the
category, therefore, the judgment referred to by the
petitioner in the case of Bhagwan Dass and
another(supra) is also not applicable looking to the peculiar
factual matrix of the case as in this case petitioner was
disabled person and has claimed relief as per Section 47 of
the old Act, 1995. Here, the situation is altogether diferent.
The petitioner joined as Civil Judge in the year 2006 and at
that time she was not having any disability, but unfortunately
she has disabled during tenure of service and she has
become incapacitated to perform judicial work, therefore, the
judgment cited by the learned counsel for the petitioner in
case of Bhagwan Dass (supra) is not applicable to the
facts of the present case.
16. Similarly, in the judgment of Vikash Kumar(supra) Hon'ble
Supreme Court has explained the diference between person
with benchmark disability and person with disability in
paragraphs 34 to 40 which are extracted as under.
"34 It is in this backdrop that the Court must
resolve the issue, bearing as it does on the
rights of similarly situated candidates. The
RPwD Act, 2016 embodies two distinct
concepts when it speaks of (i) 'persons with
benchmark disabilities' and (ii) persons with
disability. In defning a person with benchmark
disability, Section 2(r) encompasses two
categories: (i) a person with not less than 40
per cent of a specifed disability, where the
specifed disability has not been defned in
measurable terms and (ii) a person with
disability where the specifed disability has
been defned in measurable terms, as certifed
by the certifying authority. In other words,
Section 2(r) encompasses both a situation
where a specifed disability has not been
defned in measurable terms, in which event it
means a person with not less than 40 per cent
of the specifed disability but also where a
specifed disability has been defned in
measurable terms. A certifcation by the
certifying authority is contemplated in regard
to whether the person concerned does in fact
meet the specifed norm as quantifed.
35. The second concept which is embodied in
Section 2(s) is that of a person with disability.
Section 2(s) unlike Section 2(r) is not tagged
either with the notion of a specifed disability or
a benchmark disability as defned in Section
2(r). Section 2(s) has been phrased by
Parliament in broad terms so as to mean a
person with a long term physical, mental,
intellectual or sensory impairment which in
interaction with various barriers hinders full
and efective participation in society equally
with others.
36 Section 2(s) is signifcant because it
recognizes frstly, the nature of the
impairment, secondly, the interconnection of
the impairment with various barriers and
thirdly, the impact of the impairment in
hindering full and efective participation on a
footing of equality. On the frst aspect namely
the nature of the impairment, Section 2(s)
requires that the impairment should be long
term - physical, mental, intellectual or sensory.
The statutory defnition has evidently
recognized that it is the nature of the
impairment in its interaction with barriers that
results in the full and efective participation of
the person in society equally with others being
hampered. Section 2(s) is, in other words, a far-
reaching recognition by the legislature of
disability as not only a function of a physical or
mental impairment but of its interaction with
barriers resulting in a social milieu which
prevents the realization of full, efective and
equal participation in society.
37 Both as a matter of textual construction and
bearing in mind the purpose and object
underlying the term, it is necessary to
emphasise that the defnition in Section 2(s)
cannot be constricted by the measurable
quantifcations tagged with the defnition under
Section 2(r).
38 The concept of a benchmark disability
under Section 2(r) cannot be confated with the
notion of disability under Section 2(s). The
defnition in Section 2(r) applies in the case of
a specifed disability. The expression 'specifed
disability' is defned in Section 2(zc) to mean
the disabilities as specifed in the Schedule.
The Schedule to the Act incorporates fve
specifed disabilities:
1. Physical disabilities comprised of
(a) Locomotor disability including
(i) leprosy cured persons
(ii) cerebral palsy
(iii) dwarfsm
(iv) muscular dystrophy
(v) acid attack victims;
(b) Visual impairment encompassing
(i) blindness
(ii) low-vision
(c) Hearing impairment
(d) Speech and language disability
2. Intellectual disability including
(a) specifc learning disabilities
(b) autism spectrum disorder
3. Mental behavior
4. Disability caused due to
(a) Chronic neurological conditions, such as
(i) multiple sclerosis
(ii) parkinson's disease
(b) Blood disorder
5. Multiple disabilities (more than one of the above
specifed disabilities). The Central government
has been empowered to notify any other
category as a specifed disability.
39. The concept of benchmark disabilities under
the RPwD Act, 2016 has specifcally been
adopted in relation with the provisions of
Chapter VI and Chapter VII. Chapter VI contains
special provisions for persons with benchmark
disabilities. Among those provisions is Section
31 (free education for children with benchmark
disability), Section 32 (reservation in higher
educational institutions), Section 33
(identifcation of posts for reservation), Section
34 (reservation), Section 36 (Special
Employment Exchange) and Section 37 (Special
Schemes and Development Programmes).
Chapter VII contains special provisions for
persons with benchmark disabilities in need of
high support. Thus, the concept of benchmark
disabilities has been adopted by the legislation
bearing in mind specifc provisions which are
contained in the law for persons meeting this
description.
40. Confating the rights and entitlements which
inhere in persons with disabilities with the notion
of benchmark disabilities does dis-service to the
salutary purpose underlying the enactment of
the RPwD Act 2016. Worse still, to deny the
rights and entitlements recognized for persons
with disabilities on the ground that they do not
fulfll a benchmark disability would be plainly
ultra vires the RPwD Act 2016".
17. The facts of the present case are altogether diferent as in
the case of Vikash Kumar (supra), the petitioner was
writer's cramp to participate in the Union Public Service
Commission and his disability falls within the disabilities as
provided in the Act of 2016. Hon'ble the Supreme Court has
passed the order whereas in the present case the petitioner
has become incapacitated to perform the judicial work and
her disability does not fall in any of the category, therefore,
facts of the petitioner cannot be equated with the facts of
Vikash Kumar (supra). Similarly, the facts in the
judgment passed by Hon'ble High Court of Andhra Pradesh in
the case of M. Venkateswarlu (supra) are also
distinguishable from the facts of the present case as in the
case of M. Venkateswarlu (supra), the petitioner was
driver who was declared as unft to drive on account of
acquiring disability while in service was directed to provide
alternative job and in the present case alternative job is not
available, then the petitioner of that case shall be kept in a
supernumerary post until a suitable post is available or till he
attains the age of superannuation whichever is earlier and
he shall be paid pay and allowances of the post of driver until
he attained the age of superannuation.
18. In the present case, the petitioner being judicial ofcer and
has become incapacitated to discharge the judicial work, no
alternative job of judicial work shall be provided as she is
unable to discharge any work, therefore, the facts of the case
in M. Venkateswaralu (supra) are also distinguishable
from the facts of the present case. The other judgment
referred to by the petitioner in the case of State of Punjab
and others vs. Rafi Masih (supra) is not applicable as
the petitioner in the present case has not challenged the
recovery. Likewise, the other judgments referred to by the
petitioner are distinguishable from the facts of the present
case.
19. From the analysis and factual and legal matrix, it is clear
vivid that the petitioner is not claiming her initial
appointment as per RPWD Act, 2016, but she has sufered
disability which has incapacitated the petitioner to discharge
the judicial work, therefore, she cannot be granted protection
of the PWD Act, 1995 & RPWD Act, 2016 as her disability
does not fall within any of the categories defned in both the
Acts.
20. Hon'ble Supreme Court in the case of Nawal Kishore
Sharma vs. Union of India and others 14 has held in para
18 and 19 which are extracted as under:
"18. Let us now deal with the
appellant's argument that his heart
ailment should be understood as a
disability under the Disability Act
and consequential benefts be
accorded to him. Section 2(i) of the
Act takes into account visual
disability, locomotor disability,
mental illness, mental retardation,
hearing impairment and leprosy. A
14 2-21 (4) SCC 487
hear ailment is not covered within
the defnition of disability in the Act
and we would hesitate to import
words, which the legislature chose
not to, in their defnition of
disability. When the 1995 Act was
replaced by the Rights of Persons
with Disabilities Act, 2016, " a
person with disabilities" was
defned under Section 2(s) as a
person with long term physical,
mental, intellectual, or sensory
impairment which prevent his ful
and efective participation in
society. Section 2 (zc) defnes,
"specifed disability" as those
mentioned in t he Schedule to the
2016 Act. In the said Schedule,
"physical disability", "intellectual
disability", "mental behaviour", are
specifed. The dilated
Cardiomyopathy condition of the
appellant is neither a specifed
disability nor is the same relatable
to the broad spectrum of
impairments, which hinders his full
and efective participation in
society. Therefore, we are of the
considered opinion that Dilated
Cardiomyopathy condition of the
appellant does not bring his case
within the ambit of either the 1995
Act or of the 2016 Act. The High
Court, therefore, was correct in
concluding that Dilated
Cardiomyopathy condition would
not facilitate any beneft to the
appellant under Section 47 of the
Disability Act.
19. For the reasons aforesaid, the
appeal is found devoid of, merit and
is dismissed leaving the parties to
bear their own costs".
21. In view of the above factual and legal matrix, particularly the
law laid down by the Hon'ble Supreme Court in the case of
Nawal Kishore Sharma (supra) and also considering the
disability sustained by the petitioner which does not
enumerate as defned in the PWD Act, 1995 and PRWD Act,
2016 also, this cannot be inserted by this court and
condition (Hypoxic Brain Damage) of the petitioner is neither
a specifed disability nor is the same relatable to the broad
spectrum of impairments, which hinders his full and efective
participation in society. Therefore, I am of the considered
opinion that condition (Hypoxic Brain Damage ) of the
petitioner does not bring his case within the ambit of either
the PWD Act 1995 or RPWD Act 2016, therefore, the question
No. 1 posed by this Court is decided that the petitioner is not
entitled to get protection of the Act, 1995 & the Act, 2016.
22. So far as sanction of earned leave for the period from 2010 to
2016 is concerned, since there is no leave available in the
account of her leave credit and she could not discharge her
judicial work due to Hypoxic Brain Damage, extraordinary
leave has been granted which is legal and justifed. As per
Rule 36(4) it is well settled principle that Government servant
is not entitled to any salary during extraordinary leave period
which cannot be said to be illegal and arbitrariness,
therefore, declaring the petitioner for the period from 2010 to
2016 as extraordinary leave is legal and justifed which does
not call for any interference by this court. Accordingly,
questions No. 2 & 3 framed by this Court are also decided
against the petitioner.
23. However, it is made clear that since the petitioner has also
fled notifcation dated 11-5-2022 issued by the Government
of Chhattisgarh by which new contribution pension scheme
which was existing on 1-11-2004 has been repealed and old
pension scheme is being implemented and if the old pension
scheme which has been restored by the State Government is
implemented by the Government of Chhattisgarh for all
employees who have been appointed on or after 1-11-2004,
the same beneft shall be extended to the petitioner on
fulflling the condition enumerated under the old pension
scheme which may be imposed by the State Government
subsequently.
24. Accordingly, the instant writ petition deserves to be and is
hereby dismissed.
25. Pending interlocutory applications, if any, stand disposed of.
Sd/-
(Narendra Kumar Vyas)
Judge
Raju
