Provided that a reasonable opportunity to explain
the reasons for such absence shall be given to that
Government servant before provisions of sub-rule (2)
are invoked.
11. Rule 32 of the Central Civil Services Leave Rules
(b) Six months, where the Government servant has
completed one year's co`1ntinuous service on the date
of expiry of leave of the kind due and admissible
under these rules, including there months'
extraordinary leave under Clause (a) and his request
for such leave is supported by a medical certificate as
required by these rules;
12. Therefore, there are no merits in the writ petition and
the same is liable to be dismissed.
13. Per contra, learned counsel appearing for the
petitioner submits that before the Chief Commissioner
also, the respondent authorities submitted their written
submissions on 28.06.2018, stating as follows :-
21. The representative of Respondent No.2, vide
his written submission dated 28-06-2018
submitted that Hon'ble Court was apprised that
appropriate directions have been issued for setting
up of a Committee to find a suitable post for the
Complainant in pursuance of Section 20(4) of
Rights of Persons with Disabilities Act, 2016 vide
letter dated.13-04-2018. The Committee constituted
by the Institute for this purpose had submitted its
report. In the report the Committee has mentioned
the Complainant is unable to understand basis
communication and is not able to independently
speak and understand reading and writing skills
required for functional task for his current post of
Reader and Assistant Director or any other
technical and non-technical posts in the institute
and thus recommended that Dr. Prakash may opt
for invalid pension in terms of Rule 38(2) of CCS
pension Rules, 1972. He further submitted that
keeping in view of Section 20(4) of Rights of
Persons with Disabilities Act, 2016, it has been
considered not to accept the recommendations of
the Committee and the case stands referred to the
Ministry of Finance, Deptt. Of Expenditure for
creation of a supernumerary post till such time a
suitable post is found for him or till his
superannuation whichever is earlier. The advice of
the Ministry of Fiance is awaited and further action
will be taken accordingly. As regards, release of
salaries are concerned, it has been informed by
Director, AYJNHH, Mumbai that the salary for the
period leave due to Dr. S.G.R. Prakash has been
released due to him for the period he was on
medical leave. He has been declared 'UNFIT' by the
Government servant on leave on medical ground
will be permitted to return to duty only on
production of medical certificate of fitness (Rule 19
a& 24 (3) of Central Civil Services (Leave) Rules,
1972). No salary since 22.12.2017 has been
released as no leave is available in his credit."
14. In support of his contentions, learned counsel
appearing for the petitioner relied upon the judgment of
this Court in W.P.No.5486 of 2011, dated 14.09.2022, in
which the petitioner therein was appointed as a casual
conductor in the Corporation in the year 1984, and
regularized his services the year 1987. While he was on
duty, he met with an accident and was hospitalized. After
first aid treatment he was shifted to Corporation Hospital,
Tarnaka, Hyderabad, from where on medical advise, he
was sent to Nizam's Institute of Medical Sciences and after
surgery of the spinal cord, his two discs were removed. The
corporation retired the petitioner from service on medical
grounds vide order dated. 21.07.2001. Though the
petitioner made several representations for providing
alternative employment, the Corporation paid no attention,
and the said writ petition was allowed.
15. On the other hand, learned Standing counsel
appearing for the respondents relied upon a Division Bench
judgment of this Court in W.P.No.22695 of 2009, dated
28.02.2024, wherein the said writ petition was allowed
observing as follows :-
"This Court, having considered the rival
submissions made by the parties, is of the view that
the respondent was declared medically unfit and he
was medically decategorised vide proceedings,
dated 06.06.2002. Thereafter, the case of the
respondent was placed before the Screening
committee and on recommendation of the Screening
Committee only, the petitioners have continued the
respondent as Deputy Chief Controller and when a
person is medically decategorised, his case will not
come within the purview of the Act, 1995 and the
Tribunal was not justified in allowing the O.A in
favour of the respondent. Therefore, the orders
passed by the Tribunal are liable to be set aside and
accordingly, they are set aside."
16. Per contra, learned counsel appearing for the
petitioner submits that the said case pertains to the
promotion of the petitioner therein and, therefore, the said
case is not applicable to the present case.
17. While arguing the matter, learned Standing Counsel
for the respondents submits that as per the Central Civil
Services (Leave) Rules, 1972, the petitioner is not entitled
for any benefits during the leave period.
18. Per contra, learned counsel appearing for the
petitioner submits that the Central Civil Services (Leave)
Rules, 1972, were amended as follows :-
The Department of Personnel & Training (DOPT) has
issued a fresh set of Insturction to all
Ministries/Departments granting relaxation in the
Central Civil Services (Leave) Rules, 1972 for
Disabled employees. In an Office Memorandum dated
February 25, 2015, the DoPT has reiterated that the
disabled employees will be entitled to pay, promotion
and other service benefits even if they cannot be
taken back to the post they were holding or are
adjusted or kept waiting until a suitable vacancy
arises.
The medical leave on account of disability will not be
subject to ceiling under Rule 12 and any leave
debited for the period after a Government servant is
declared incapacitated shall be remitted back into
his/her leave account.
The leave applied on medical certificate in
connection with disability cannot also be refused or
revoked without reference to a Medical Authority,
whose advice shall be binding. Leave will also be
granted even if the Government servant's family
member submits an application/medical certificate in
case the employee is unable to do so on account of the
disability.
The services of an employee can neither be
terminated nor reduced in rank in case the employee
has acquired a disability during his service. Any
disabled employee who is not fit to return to duty
shall be shifted to some other post. If that is not
possible, the disabled employee shall be kept on a
supernumerary post until a suitable post is available
or he attains superannuation. Besides, no promotion
shall be denied to a person simply on ground of
his/her disability."
19. The Government of India also issued Office
Memorandum dated 17.07.2018, which reads as follows :-
"The undersigned is directed to say that the CCS
(Leave) Rules, 1972 have been amended vide Notification
G.S.R. No. 438 (E) dated. 03.04.2018 (copy enclosed) to
bring them in conformity with the Rights of Persons with
Disabilities Act, 2016. Accordingly, it has now been
decided that leave applied under rule 20, shall be binding.
Further, any leave debited for the period(s) granted after
receipt of the certificate of disability of the Medical
Authority, shall be remitted back into the leave account of
the Government servant. The Certificate of Disability is
required to be issued in Form '3A' which should be signed
by a Government doctor of a Government medical board.
Further, a Government servant who is granted leave in
accordance with the provisions of clause (b) of sub rule (1)
of rule 20 of CCS (Leave) Rules, 1972, the provisions of
section 20 of the Rights of Persons with Disabilities Act,
2016 (49 of 2016) shall, suo-motu, apply.
2. These orders are to be effective from 19-04-2017.
20. This Court, having considered the rival submissions
made by learned counsel for the respective parties, is of the
considered view that the petitioner took treatment for
brain surgery at Yashoda Hospital, Secunderabad, and
after recovery, he has submitted the joining report on
21.12.2016 along with the medical fitness certificate issued
by the competent authority. However, without allowing the
petitioner to join duty, he was asked to obtain a second
opinion on 04.01.2017, and, accordingly, the petitioner
obtained a second opinion and submitted the medical
report on 23.01.2017, however the petitioner was not
allowed to join duty. Such action of the respondents in not
allowing the petitioner to join duty is untenable.
21. Once the Court of Chief Commissioner, New Delhi,
vide order dated 20.07.2018 considered the claim of the
petitioner and passed an order stating that there is a gross
violation of Rights of Persons with Disabilities Act, 2016 by
Respondent No.1 and directed Respondent Nos.1 and 2 to
facilitate the petitioner, so that he can join duty within 30
days of issuance of the Order, and pay all the outstanding
dues to the petitioner till date and submit a compliance
report to the Court within 45 days of issuance of this
Order, it is incumbent on the part of the respondent
authorities to follow the same and submit compliance
report. Further, the Chief Commissioner held that as per
Section 20 (4) of the Rights of Persons with Disabilities Act,
2016 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 benefits; provided further that 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.
22. After passing the above order, though the petitioner
is making efforts to join the duty, on one pretext or the
other, the respondent authorities are not allowing the
petitioner to join duty, and the same cannot be considered
negligence on the part of the petitioner. Though the
petitioner is trying to join duty, the authorities have not
allowed the petitioner to join duty on one pretext or other
and have dragged the matter for a long time. The said
action of the respondents is illegal and arbitrary.
23. Further, in the order relied upon by the learned
counsel for the petitioner in W.P.No.5486 of 2011, dated
14.09.2022, while allowing the said writ petition, it was
observed as follows :-
In the result, the writ petition is allowed. The
respondent Corporation is directed to pay full salary
to the petitioner for the period w.e.f. 21.01.2001 upto
21.02.2007 after calculating the same as per the
pay scale applicable to the post of Conductor for the
relevant period. The arrears shall be paid within a
period of two months from the date of production of
a copy of this judgment before the respondent-
Corporation along with simple interest thereon @ 6%
p.a. w.e.f. 21.02.2007 upto the date of payment."
24. In the present case, the petitioner also never
neglected to join the duty, still the respondents knowingly
or unknowingly dragged the matter. They did not allow
the petitioner to join duty. Without the fault of the
petitioner, the respondents treated the period from
22.12.2016 to 11.09.2018 as 'not on duty' and did not pay
salary to the petitioner for the said period. If there is any
negligence on the part of the petitioner, the respondents
can take action against the petitioner. But, in the instant
case, though the petitioner is ready to join duty after
recovery, the respondents have not allowed him to join
duty. Therefore, because of the mistakes of the
respondents, the petitioner cannot be made to suffer.
25. Moreover, the petitioner underwent brain surgery
twice. Due to his health condition, he could not continue
in the same post. Considering the same, the respondents
ought to have followed the Chief Commissioner's order.
However, neither of the respondents followed the order of
the Chief Commissioner. They accommodated the
petitioner into service nor treated the leave period from
22.12.2016 to 11.09.2018 as 'on duty', which caused the
petitioner suffer a lot. Thus, the respondents action is not
proper and for providing alternative employment to the
petitioner, the respondents have taken a long time, and it
is a mistake of the authorities, therefore, the respondents
cannot escape from their liability. Further, under the
Disabilities Act, the total salary cannot be denied to the
petitioner.
26. Even on the query raised by the Court under what
provision, the leave period of the petitioner is treated as
extraordinary leave, the learned Standing Counsel for the
respondents cannot satisfy the Court as to how they have
treated the period of absence of the petitioner as an
extraordinary leave. Viewed from any angle, the
respondents cannot deny the relief sought by the petitioner
regarding the payment of salary from 22.12.2016 to
11.09.2018. The petitioner being a physically challenged
person, the total salary cannot be denied without his fault.
27. In those circumstances, this Court deems it
appropriate to direct the respondents to pay 50% salary to
the petitioner from 22.12.2016 to 11.09.2018. The rest of
the impugned order holds good.
28. Accordingly, the writ petition is partly allowed to the
extent indicated above. No order as to costs.
Pending miscellaneous petitions, if any, shall stand
closed.
______________________________________
NAMAVARAPU RAJESHWAR RAO, J
03.03.2025
Prv
