Punjab-Haryana High Court
Devinder Sharma vs State Of Punjab & Others on 4 July, 2023
{ 2023:PHHC:083959 }
1. The petitioner has preferred this Writ Petition under Article
226/227 of the Constitution of India for the issuance of a Writ in the nature
of mandamus directing the respondents to extend the date of retirement of
the petitioner upto 62 years as a disabled person with 60% disability.
2. The background facts of this case are that the petitioner has
only one kidney as his right kidney was transplanted and as per Rules the
petitioner is 60% permanent disabled.
3. As per the provisions of the Persons With Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995
(hereinafter referred to as "the Act of 1995"), the petitioner was eligible to
obtain the requisite facilities, concessions and benefits after he survived on
one single kidney i.e. w.e.f. 05.06.2003. The petitioner was accordingly
promoted under the handicapped cadre as a Lecturer (History).
SURESH KUMAR
2023.07.06 17:57
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4. The State Government decided to enhance the age of
retirement of all employees with disabilities under the Act of 1995 from 58
years to 60 years.
5. The employees other than blind preferred a Writ Petition
before this Court and this Court held that all the different various categories
of disabled persons would be entitled for age enhancement in terms of
Section 2(1) of the Act of 1995.
6. LPA was preferred by the State which came to be rejected on
25.09.2012. The State thereafter assailed the said order before the Hon'ble
Supreme Court, however, the SLP was dismissed on 16.09.2014. The
retirement age, thus, of all physically handicapped employees was raised
from 58 to 60 years. Accordingly, the petitioner was granted extension of
his age, firstly, for one year and then again for another year vide orders
dated 19.02.2016 and 23.02.2017 respectively.
7. On reaching the age of 60 years on 28.02.2018, the petitioner
claimed for extension in terms of the amended Rules of superannuation
from 60 to 62 years.
8. While no individual order was passed in favour of the
petitioner, this Court in CWP-25972-2015, titled as Dr.Jagjivan Singh Vs.
State of Punjab and Others held that the age of retirement of all disabled
category of employees was required to be enhanced upto the age of 62
years. The Court was of the view that the enhancement granted by the State
Government only to the blind categories of employees is discriminatory and
all the employees falling under the different categories of the disability
would be entitled for enhancement of age upto 62 years.
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9. As has come on record in the reply, the State Government vide
their order passed in the year 2011 withdrew the circular enhancing the age
of 62 years to the blind employees. The said circular was withdrawn vide
order dated 23.08.2011, however, as pointed out by the learned counsel for
the petitioner the same was not given the retrospective effect.
10. The petitioner in the meanwhile having completed the age of
62 years attained the superannuation on 28.02.2020 but he was not granted
the increments for the period he served after attaining the age of 58 years
upto 62 years. His pension was also fixed as if he had retired at the age of
58 years.
11. Learned counsel for the petitioner submits that since the
petitioner continued to serve upto the age of 62 years in terms of the
circulars and judgments and interim order passed by this Court, there was
no occasion to withhold the increments to the petitioner or to withhold other
retiral benefits due to him. He was entitled to pension after his pay fixation
been done after the age of 62 years.
12. Per contra, learned State counsel submits that the extension
was not granted beyond 60 years to the petitioner and he, therefore, cannot
claim his continuity of service upto the age of 62 years solely on the basis
of the judgment passed by this Court in relation to some other employees.
The petitioner, therefore, is neither entitled to arrears of increments for the
said period nor is he entitled for any other benefit of enhancement of
pension.
13. I have considered the submissions of the learned counsel for
the parties and perused the material on record.
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{ 2023:PHHC:083959 }
14. Having noticed the aforesaid facts, this Court finds that the age
of retirement has been enhanced by the State Government initially from 58
to 60 years for all employees including blind and thereafter they issued a
circular enhancing the age of retirement of blind employees alone upto 62
years.
15. The question of enhancing the age of retirement of blind
employees alone, leaving out the other disabled categories of employees
was the subject matter of examination before this Court in
CWP-25972-2015 wherein it was held as under:-
"In the present case, the petitioner retired at the age of 60
years whereas he was entitled for extension of his age upto the
age of 62 years like one Bhajan Chand, who was blind.
Moreover, the controversy in hand is squarely covered by
National Federation of Blind's case (supra) wherein it was held
that the benefit of reservation under the Disability Act, 1995
cannot be confined to Class C and D posts. It is applicable to all
Group A, B, C and D posts and as such, the classification made
by the respondent-State is contrary to provisions of the Disability
Act, 1995.
Accordingly, in view of the facts and law position as
discussed above, the present writ petition is allowed and the
respondents are directed to consider the case of the petitioner in
view of National Federation of Blind's case (supra) by granting
the extension by one year as mentioned in the circulars issued by
the State Government by granting benefit to Class III and IV
employees as it was held in said judgment that the benefit cannot
be restricted to Class C and D posts only but it is applicable to
all the Groups. The necessary exercise be done within a period of
two months from the date of receipt of certified copy of this
order. In case, the petitioner is found to be entitled, the necessary
benefits be granted within one month thereafter. In case, any
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adverse order is passed, the petitioner is at liberty to challenge
the same."
16. The said order of the Division Bench of this Court was passed
in terms of the judgment passed by the Division Bench of this Court in
Bhupinder Singh Vs. State of Punjab and Others; 2011 (4) SCT 55. It also
relied upon the judgment passed in the case of Union of India and Another
Vs. National Federation of the Blind and others; 2013(4) SCT 807. The
order was subsequently modified by this Court while deciding application
i.e. CM-10346-CW9-2016 and directed grant of extension for two years
instead of one year to the petitioner vide order dated 30.08.2016. The
relevant portion of the order is reproduced as under:-
"Application is allowed and judgment dated 03.08.2016 is
modified to the extent that the respondents are directed to
consider the case of the petitioner by granting the extension for
two years (one year + one year), meaning thereby, the petitioner
be allowed to continue in service upto the age of 62 years."
17. It seems that the said judgment was relied upon and status quo
was granted to the petitioner when his age was not extended above 60 years
and in terms of the order passed by this Court, he continued upto the age of
62 years. The contention of the respondents, therefore, is not sustainable as
it was a duty of the respondents to have passed orders for similarly situated
all employees who were of disabled category to extend their age of
retirement to 62 years as observed by this Court (supra).
18. Admittedly, the petitioner served upto the age of 62 years and
he, therefore, is entitled for the service benefits which accrued to him on
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account of his performing of duties with the State. Accordingly, he would
be entitled to receive increments for the extended period i.e. 58 years upto
the age of 62 years. His pension would accordingly be revised on the basis
of last pay drawn after including the increments which he will get for the
said period upto the age of 62 years. The pension be accordingly revised
and other retiral benefits would also be accordingly calculated in terms of
the aforesaid.
19. The Writ Petition is accordingly allowed and the respondents
are directed to release the increments for the period from the date the
petitioner has attained the age of 58 years upto the age of 62 years when he
has attained superannuation as a disabled employee.
20. The arrears shall be calculated accordingly, the pension shall
also be calculated accordingly and released including all other retiral
benefits within a period of 3 months.
21. Since the petitioner was already receiving pension, this Court
does not deem it appropriate to grant benefit of interest to the petitioner.
22. No costs.
SURESH KUMAR
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