Delhi High Court
Rakesh Kumar Giri vs Union Of India & Ors. on 8 August, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 08.08.2014
+ WP (C) No.4965 of 2014 & CM No.9934 of 2014 (Stay)
RAKESH KUMAR GIRI ...... Petitioner
Through: Mr. Arun Srivastava, Adv.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Ms. Monika Arora, CGSC.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J. (Oral)
1. In this Writ Petition under Article 226 of the Constitution of India, the
petitioner seeks a writ of mandamus for setting aside the notification
dated 10.9.2002 whereby the respondent/Union of India has exempted
the application of Section 47 of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995 (for
short „the Act‟) to the Border Security Force. He also seeks quashing of
the order dated 11.7.2014, 1.8.2014 issued by the respondents and a
further direction that he be kept in service till the age of superannuation.
The petitioner‟s case is that he joined the BSF on 9.3.1990 as Sub
Inspector and was later promoted to the rank of Inspector on 24.8.1998.
During the course of his service he received various commendations till
the year 2004. However on 18.12.2004, he met with a serious accident
resulting in a neck injury, which rendered him a Quadriplegic, i.e. loss of
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sensation in all four limbs. He was declared 100 per cent disabled. Now
he moves around on wheelchair with some effort, but is mentally alert
and suitably employable; that on 25.2.2008 the respondents permitted
his retention into service till completion of 20 years of service with the
option of his proceeding on voluntary retirement after completion of the
said period. By the opinion of the Medical Board dated 3.2.2014, he
was considered not fit for further service and an order in this regard was
communicated to the petitioner. He contends that he represented to the
Government to be retained in service on various grounds including: his
physical, mental and spiritual conditions, all being such that he could
still work in the BSF with limited duties. He also apprehended to be
beset with severe difficulties in case of retirement on the ground of
medical unfitness. However, vide order dated 11.7.2014, his
representation was rejected. His subsequent representation to the Court
of Chief Commissioner for Persons with Disabilities resulted in notice
being issued to respondent No.3 on 25.7.2014.
2. It is noticed that the petitioner was required to appear before the Review
Medical Board at BSF Hospital, RK Puram, New Delhi on 25.7.2014
and yet again on 31.7.2014 between 1000 hours and 1600 hours. It is an
admitted position that the petitioner defaulted in appearance on both
occasions. The petitioner‟s case is that he would be entitled to continue
in service in terms of sub-section (1) of Section 47 of the Act and that
his service could not be dispensed with on account of his disability; that
since he is disabled and not suitable for the post he was holding he could
be shifted to some other post with same pay scale and service benefits.
3. He states that inasmuch as the respondent/Union of India has exempted
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the application of Section 47 of the Act to the Border Security Force he
has suffered irremediably and is not being treated at par with other
disabled persons employed in the State/Union of India. Hence, he
argues, the action is arbitrary and falls afoul of Article 14 of the
Constitution of India. He submits that in the first instance the
Government lacks the power to issue the impugned notification
exempting the application of Section 47 of the Act. He relies upon a
Division Bench judgement of the Allahabad High Court in Dileep
Kumar Singh Vs. Union of India & Ors. 2014 (4) ADJ 97 which held
that "legislature itself has contemplated that Notification of exception
has to be issued with reference to the Proviso to sub-section (2) of
Section 47 only. Therefore, Notification for exemption of the
establishment has to be dealt with regard to what is covered by sub-
section (2) of Section 47 and not the entire Section 47."
4. Section 47 of the Act reads as under:
"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:
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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."
5. The Notification reads as under:
"S.O. 995 (E). - In exercise of the powers conferred by proviso
to Section 47 of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act,
1995 (1 of 1996) the Central Government having regard to the
type of work carried on hereby exempts all categories of posts of
"combatant personnel" only of the Central Para Military Forces
(CPMF‟s) namely, Central Reserve Police Force (CRPF), Border
Security Force (BSF), Indo-Tibetan Border Police (ITBP)
Central Industrial Security Force (CISF) and Assam Rifles from
the provision of the said section."
6. Quite clearly the exemption has been made on the basis of proviso to
sub-section (2) of Section 47 of the Act which empowers the
Government to exempt "any establishment from the provisions of this
section". The language of the statute is clear inasmuch as it refers to the
entire Section and not to the sub-section only. This Court notices that
Section 73 of the Act deals with power of the appropriate Government to
make rules for carrying out the provisions of the Act. Sub-section 3
thereof details the manner in which a notification by the Central
Government made under the proviso of sub-section (2) of Section 47
would be laid before each House of Parliament. Sub-section 3 deals
with the powers of the appropriate Government for making of a
modification in the Rule, notification or scheme under the Rule making
powers. It does not refer to or deal with the powers of the Government
to exempt certain provisions of the Act from being applicable to an
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establishment. Section 73 of the Act is restricted to the Rule-making
powers of the appropriate Government, whereas Section 47 of the Act
deals exclusively with the powers of the appropriate Government to
exempt the entire Section from its application to any establishment.
Therefore, reference to Section 73 of the Act which limits merely the
Rule-making powers of the appropriate Government is misplaced. We
are, therefore, in respectful disagreement with the aforesaid judgement
of the Allahabad High Court.
7. This Court is of the view that the appropriate Government has the
powers under the proviso to sub-section (2) of Section 47 of the Act to
exempt any establishment from the provisions of the entire Section 47 of
the Act. The respondents/Government of India is competent to issue a
notification of exemption. The aforesaid power was exercised by the
Government of India exempting the Border Security Force from the
application of Section 47 of the Act. The Notification having been duly
issued, the protection and benefits envisaged under Section 47 of the Act
would not be available to the petitioner. Hence, there is no cause for
grievance against the respondents. The petition is without merit and is
accordingly dismissed.
NAJMI WAZIRI, J.
AUGUST 08, 2014 KAILASH GAMBHIR, J.
b'nesh
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