Between:- R vs State Of H.P. And Others
2021 Latest Caselaw 3778 HP

                             REPORTABLE

    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA




                                                     .
              ON THE 9th DAY OF AUGUST, 2021





                          BEFORE

         HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN





                              &
             HON'BLE MR. JUSTICE SATYEN VAIDYA


                   CIVIL WRIT PETITION(ORIGINAL APPLICATION)





                   NO. 7944 OF 2019.

    Between:-      r
    SURJEET SINGH,
    S/O SH. ROSHAN LAL,

    R/O HOUSE No. 27,
    TYPE 2, BLOCK M2,
    HOUSING BOARD COLONY,
    MEHLI,


    SHIMLA-13, HP.

                                               ......APPLICANT.
    (BY SH. RAJIV JIWAN,




    SENIOR ADVOCATE WITH
    SH. PRASHANT SHARMA,
    ADVOCATE)





    AND





    1.    STATE OF HIMACHAL PRADESH
          THROUGH SECRETARY (HOME)
          TO THE GOVERNMENT OF HIMACHAL PRADESH,
          SHIMLA-2.

    2.    DIRECTOR GENERAL OF POLICE,
          HIMACHAL PRADESH, SHIMLA-2.

    3.    ADDITIONAL DIRECTOR GENERAL OF POLICE (CID),
          HIMACHAL PRADESH, SHIMLA-9.

    4.    SH. MANESH KUMAR,
          S/O (NOT KNOWN TO THE APPLICANT),




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                               2




          PRESENTLY POSTED AS SENIOR ASSISTANT,
          STATE VIGILANCE & ANTI CORRUPTION BUREAU,
          SHIMLA-2.




                                                    .

    5.    RAJAN KUMAR,
          S/O (NOT KNOWN TO THE APPLICANT)
          PRESENTLY POSTED AS SENIOR ASSISTANT,
          POLICE HEADQUARTERS, HIMACHAL PRADESH,





          SHIMLA-2.

    6.    RAM PRASAD S/O (NOT KNOWN TO THE APPLICANT)
          PRESENTLY POSTED AS SENIOR ASSISTANT AP&T,
          HIMACHAL PRADESH,





          SHIMLA.

    7.    GULJAR MOHD.,
          S/O (NOT KNOWN TO THE APPLICANT)

          PRESENTLY POSTED AS SENIOR ASSISTANT,
          AP&T , TEMPORARILY ATTACHED WITH

          1 INDIA RESERVE BATTALION,
          BANGARH,
          DISTRICT UNA,
          HIMACHAL PRADESH.



    8.    RAMESH KUMAR,
          S/O (NOT KNOWN TO THE APPLICANT)
          PRESENTLY POSTED AS SENIOR ASSISTANT,




          POLICE HEADQUARTERS,
          HIMACHAL PRADESH,
          SHIMLA-2.





    9.    KISHORI LAL,
          S/O (NOT KNOWN TO THE APPLICANT)





          PRESENTLY POSTED AS JUNIOR ASSISTANT,
          CID, SHIMLA-9.

    10.   YUGAL KISHORE,
          S/O (NOT KNOWN TO THE APPLICANT)
          PRESENTLY POSTED AS SENIOR ASSISTANT,
          POLICE HEADQUARTERS,
          HIMACHAL PRADESH,
          SHIMLA-2.

    11.   NASHEEM AKHTAR,
          S/O (NOT KNOWN TO THE APPLICANT)
          PRESENTLY POSTED AS SENIOR ASSISTANT,




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                                     3




          POLICE HEADQUARTERS,
          HIMACHAL PRADESH,
          SHIMLA-2.




                                                             .

    12.   SMT. SHARDA DEVI,
          W/O (NOT KNOWN TO THE APPLICANT)
          PRESENTLY POSTED AS SENIOR ASSISTANT,
          IN POLICE HEADQUARTERS,





          HIMACHAL PRADESH,
          SHIMLA-2.


                                                         ......RESPONDENTS.





    (SH.ASHOK SHARMA, ADVOCATE GENERAL WITH SH. RAJINDER
    DOGRA, SENIOR ADDITIONAL ADVOCATE GENERAL, SH.
    HEMANSHU MISRA, SH. SHIV PAL MANHANS, ADDITIONAL

    ADVOCATE GENERALS AND SH. BHUPINDER THAKUR, DEPUTY
    ADVOCATE GENERAL, FOR RESPONDENTS NO. 1 TO 3.


               This petition coming on for orders this day, Hon'ble



    Mr. Justice Tarlok Singh Chauhan, passed the following:

                             ORDER

The instant petition has been filed for grant of

the following reliefs:-

"(a) That, impugned order dated 4.7.2015 annexure A-10 may kindly be quashed and set aside.

(b) That the seniority of the clerks/Junior Assistants, as it stood on 1.11.2013, showing the applicant at Sr. No. 41 may kindly be ordered to be corrected by showing the applicant at Sr. 34 by correcting date of appointment as 2.4.1998 in place of 5.2.2000. Further, consequently, the

applicant be deemed to have been promoted on the basis such corrected seniority list of

.

Clerks/Junior Assistants, to the post of Senior

Assistant, by determining due date from which he would have been promoted as Senior Assistant, in

case he is granted seniority as Clerk/Junior Assistant from 2.4.1998, in place of 5.2.2000.

(c) That in pursuance to above relief, the seniority list of the Senior Assistants may also be

modified showing applicant at appropriate place in the seniority list of Senior Assistants, with all consequential benefits."

2. The undisputed facts are that the petitioner was

enlisted as Constable on 02.04.1998 in 3 rd IRBn. Pandoh

and was sent for basic recruit training at PTC, Daroh, on

06.04.1998. During training, the petitioner met with an

accident in November, 1998 and received injury in his right

leg which incapacitated him for the job of police Constable.

The petitioner could not complete his training due to the

accident and the Board of Director, Zonal Hospital, Mandi,

declared him fit only for desk duty. Since, there was no

provision in R&P Rules for conversion of a Constable to the

post of Clerk, therefore, taking compassionate view of the

matter, the case of the petitioner was referred to the

Government for giving necessary relaxation in the R&P

Rules for the adjustment of the petitioner to the post of

Clerk vide letter dated 29.06.1999. The Government, in

.

turn, vide its letter dated 30.11.1999 agreed to

adjust/appoint the petitioner as Clerk against next

available vacancy in the department in light of instructions

issued by the Department of Personnel vide letter dated

02.08.1999.

3. Accordingly, office order r dated 11.01.2000 for

adjustment/appointment of the petitioner from the post of

Constable to the post of Clerk was issued. As per the

terms and conditions, it was specifically mentioned in the

orders that the seniority of the petitioner would be

reckoned from the date of joining as Clerk. The petitioner

accordingly joined. Thereafter provisional seniority of

Clerks was issued on 01.11.2013 whereby the petitioner

was shown at Sr. No. 41, however, the petitioner did not

choose to make any representation.

4. However, thereafter, the petitioner submitted

a representation dated 27.02.2015 which was sent to the

Government for necessary clarification vide letter dated

18.04.2015 and the Government, in turn, clarified as

follows:-

"No. Home (A) B(14)-1/2009-Loose Government of Himachal Pradesh "Home Department"

.

To The Director General of Police, Himachal Pradesh, Shimla-171002.

Dated Shimla-171002-the 4-7-2015

Subject:- Representation of Sh. Surjeet Singh, Jr. Asstt. State CID, Shimla with regard to seniority.

        Sir,
            r           to

I am directed to your office letter No. P-III (1) SL Cik./07-II-9489 dated 18-04-2015 subject cited above and to say that matter has been examined in consultation with Department of on the

Personnel, who have clarified that objective of Section 47 of "THE PERSONS WITH DISABILITIES (EQUAL OPPORTUNITIES, PROTECTION OF RIGHTS AND FULL PARTICIPATION) Act, 1995 is related to

non-discrimination of disabled persons in government employment who acquire a disability during service. Provisions of this Section have been adopted by the Government in toto. The

Department of Personnel has further observed that the incumbent has been provided employment against other post with same pay scale in terms

with provision of Section 47 of the Act ibid and seniority will be assigned to him from the date of joining in that cadre.

You are, therefore, requested to take necessary action in the matter accordingly.

Yours faithfully,

sd/-

Under Secretary (Home) to the Government of Himachal Pradesh."

5. In terms of the aforesaid clarification, the

petitioner was provided employment against the post of

.

Clerk with the same pay scale, but has not been assigned

seniority, constraining him to file the instant petition.

6. We have heard the learned counsel for the

parties and have gone through the material placed on

record as also the provisions of "The Persons with

Disabilities (Equal Opportunities, Protection of Rights and

Full Participation) Act, 1995 (for short 'Act').

7. At the outset, it needs to be observed that this

Court in CWP No. 192/2004 titled Ankush Dass Sood

vs. State of H.P. and others, decided on 22.06.2007 while

dealing with the scope and ambit of the Act held as

follows:-

"India made its tryst with destiny almost 60 years back. As the country awoke to freedom at midnight

on 15th August, 1947, the people had high hopes that they would all be treated equally. More than 57 years back we gave unto ourselves a Constitution promising equality to all citizens. The framers of Constitution were well aware of the fact that certain persons suffered from social and economical inequalities and, therefore, in the process of providing true equality some benefits had to be

given to them. Articles 14, 15 and 16 of the Constitution of India clearly recognized this concept.

.

It is a well known fact that persons suffering with disabilities are unable to live a complete life not only due to their own limitations, but also due to barriers

created by society. Such persons face discrimination right from the time of their birth. Disabilities, both mental and physical, can be of various types and of

varying degrees. The persons who face such disabilities have difficulty in getting admission to good schools and colleges. They face problems in

getting access to public places, transportation etc.

They are treated with pity, but society does nothing to improve their lot. There has been little attempt to assimilate them in the mainstream of the nation's

life. Even proper research has not been done to identify the disabled, ascertain their problems and to take appropriate steps to relieve them of their

difficulties.

In the last fifteen years some efforts have been made in this regard. The Asian and Pacific countries

decided that the decade starting from 1993 and ending in 2002 would be treated as the decade of disabled persons. A meeting of various countries, including India, was held in Beijing in December, 1992. It was called the "Meeting to Launch the Asian and Pacific Decade of Disabled Persons". In this meeting, the participating countries, including India, adopted the Proclamation on the "Full Participation and Equality of People with Disabilities

in the Asian and Pacific Region" India was a signatory to the said proclamation and, therefore, it was

.

obligatory upon our country to enact a suitable

legislation so that the rights of the disabled were protected.

The Parliament of the country with a view to fulfill the promise held out in the meeting at Beijing enacted The Persons with Disabilities (Equal

Opportunities, Protection of Rights and Full Participation) Act, 1995. The avowed objects and reasons of the Act are as follows:-

i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care,

education, training, employment and rehabilitation of persons with disabilities;

ii) to create barrier free environment for

persons with disabilities;

iii) to remove any discrimination against

persons with disabilities in the sharing of development benefits, vis-a-vis non-disabled

persons'

iv) to counteract any situation of the abuse and the exploitation of persons with disabilities;

             v)      to     lay       down           a        strategy         for
             comprehensive            development of programmes

and services and equalization of opportunities for persons with disabilities; and

vi) to make special provision of the integration of persons with disabilities into the

.

social mainstream."

8. Section 47 of the Act reads as under:-

"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 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: 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."

9. A bare perusal of Section 47 of the Act makes it

abundantly clear that if any employee acquires disability

during service and due to this disability is not suited to

hold the post which he was previously manning, he should

.

be shifted to another post with the same pay scale and

service benefits which obviously would include seniority.

10. In Kunal Singh vs. Union of India and

another (2003) 4 SCC 524, the Hon'ble Supreme Court

while interpreting Section 47 of the Act held that no

Department can dispense with r or reduce in rank an

employee, who acquires disability during his service. It

shall be apposite to refer to relevant observations made in

para-9 of the judgment which read as under:-

"9. Chapter VI of the Act deals with employment relating to persons with disabilities, who are yet to secure employment. Section 47, which falls in Chapter

VIII, deals with an employee, who is already in service

and acquires a disability during his service. It must be borne in mind that Section 2 of the Act has given distinct and different definitions of "disability" and

"person with disability". It is well settled that in the same enactment if two distinct definitions are given defining a word/expression, they must be understood accordingly in terms of the definition. It must be remembered that 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 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; if it is not possible to adjust the employee against any post he will be kept on a supernumerary post until a suitable post is

available or he attains the age of superannuation,

whichever is earlier. Added to this no promotion shall be denied to a person merely on the ground of his disability as is evident from sub-section (2) of Section

47. Section 47 contains a clear directive that the

employer shall not dispense with or reduce in rank an employee who acquires a disability during the service.

In construing a provision of social beneficial enactment that too dealing with disabled persons intended to give

them equal opportunities, protection of rights and full participation, the view that advances the object of the

Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of Section 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service."

11. The aforementioned observation of their

Lordships do not leave any manner of doubt that an

employee who has suffered disability during service cannot

be deprived of the benefits which would otherwise accrue to

him merely on account of disability.

.

12. As observed above, the respondents themselves

have not disputed the applicability of the Act and have

rather conferred a part of the benefit granting the same pay

scale by resorting to Section 47 of the Act, but then what

has been conveniently ignored is the service benefits to

which the petitioner is entitled r which would necessarily

and essentially include the benefit of seniority.

13. In view of the aforesaid discussion, we find merit

in this petition and the same is accordingly allowed. The

impugned order dated 04.07.2015 (Annexure A-10) denying

the seniority to the petitioner from the date of his initial

appointment is accordingly quashed and set aside. As a

consequence thereof, the seniority list as it stood on

01.11.2013 showing the petitioner at Sr. No. 41 is ordered

to be corrected by showing the petitioner at Sr. No.34 by

correcting his date of appointment as 02.04.1998 in place

of 05.02.2000. Consequently, the petitioner shall be

deemed to have been promoted on the basis of such

seniority list of Clerks/Junior Assistants to the post of Senior

Assistant by determining the due date from which he

would have been promoted as Senior Assistant in case he

had been granted seniority as Clerk/Junior Assistant from

.

02.04.1998 in place of 05.02.2000.

14. As a further consequence, the respondents are

directed to place the petitioner at the appropriate place in

the seniority list of Senior Assistants along with

consequential benefits and in case further promotions have

been carried out by the respondents, then the case of the

petitioner shall also be considered for such promotion by

treating him as a appointee from 02.04.1998 in place of

05.02.2000 with all consequential benefits. However, actual

monetary benefits shall be confined to three years prior to

filing of this petition i.e. from 15.07.2013 as this petition

was filed on 16.07.2016.

15. For compliance, to come up on 10.11.2021.

(Tarlok Singh Chauhan) Judge

(Satyen Vaidya ) Judge

9th August, 2021.

(krt)