Regular Second Appeal No. 3268 of 2008 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Regular Second Appeal No. 3268 of 2008
Date of Order: 20.10.2008
State of Haryana and others
...Appellants
Versus
Dhir Singh
..Respondent
CORAM: HON’BLE MR. JUSTICE RAJIVE BHALLA
Present: Mr. Lokesh Sinhal, Addl. A.G.Haryana,
for the appellants.
RAJIVE BHALLA, J (Oral).
The State of Haryana challenges the judgment and decree
passed by the Additional District Judge-I, Jind, dated 22.07.2008
accepting the appeal filed by the respondent and reversing the judgment
and decree passed by the Additional Civil Judge, Jind, dated 27.03.2006.
The plaintiff-respondent, who was working as a driver with
Haryana Roadways, Jind was pre-maturely retired from service on
08.07.1995 on medical grounds. Pursuant to directions issued in
C.W.P.No.1733 of 1995 and upon a reconsideration of the matter, the
respondent was posted as a Security Guard in the pay scale of Rs.2550-
3200 plus usual allowances on 23.03.1999, with effect from 09.07.1995.
The plaintiff-respondent filed a suit by placing reliance upon Section 47 of
the Persons with Disabilities (Equal Opportunities, Protection of Rights and
Full Participation) Act, 1995 and asserted that he had to be granted the
same pay scale and service benefits as were paid to him as a driver. The
appellants on the other hand opposed this prayer by asserting that as the
respondent had accepted his employment as a Security Guard, his claim
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based upon the provisions of Section 47 was not tenable. The trial Court
dismissed the suit by holding that the notification dated 27.06.2005
exempts the post of driver and conductor from the operation of Section 47
of the Act. The respondent’s claim, therefore, could not be accepted. The
first appellate Court, however, accepted the appeal filed by the respondent
and decreed his suit by holding that the notification did not apply to the
respondent. Reliance was also placed upon a judgment of this Court
rendered in CWP NO.15447 of 2004 titled as Rupender Singh v. State of
Haryana.
Counsel for the appellants submits that the proviso to Sub
section 2 of Section 47, empowers the State Government to exempt any
establishment from the provisons of Section 47. In exercise of these
powers, the State of Haryana has issued a notification No.
G.S.R/Const./Art.309/2004, dated 27.06.2005 exempting the posts of
drivers and conductors in the Haryana Roadways from the provisions of
Section 47. It is, therefore, submitted that the first appellate Court,
committed an error of law in discarding this notification and granting relief
to the respondent.
I have heard counsel for the appellant and have perused the
impugned judgments as also the provisions of Section 47 of the Act and
the notification dated 27.06.2005.
Section 47 of the Act reads as follows:-
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
Regular Second Appeal No. 3268 of 2008 -3-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 avaiilable 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.”
The proviso to Sub-section 2 of Section 47, empowers the State
Government to exempt any establishment from the provisions of Section
47. The State of Haryana has in accordance with the above proviso issued
a notification dated 27.06.2005 exempting the posts of drivers and
conductors in the Haryana Roadways from the provisions of the said
section.
The notification came into effect on 27.06.2005. The respondent
was posted as a Security Guard pursuant to an order dated 12.04.2001
with effect from 09.07.1995. The notification exempting the posts of drivers
and conductors, from the operation of Section 47 of the Act issued on
27.06.2005 is prospective in operation and would, therefore, not apply to
the respondent. I find no reason to interfere with the judgment of the first
appellate court. The first appellate court, therefore, rightly reversed the
judgment of the trial court and dismissed the suit.
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In view of what has been stated hereinabove, as the impugned
judgment does not suffer from any error of jurisdiction or of law, as no
question of law much less a substantial question of law arises for
consideration, the appeal is dismissed with no order as to costs.
October 20, 2008 (RAJIVE BHALLA) nt JUDGE