C.M. NO.7825 OF 2009 &
CIVIL WRIT PETITION NO.11006 OF 2004 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
DATE OF DECISION: JULY 14, 2009
Abhey Ram
.....Petitioner
VERSUS
State of Haryana and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr. J. S. Maanipur, Advocate,
for the petitioner.
Mr. Harish Rathee, Sr.DAG, Haryana,
for the State.
****
RANJIT SINGH, J.
The petitioner, who was earlier working as a driver with
Haryana Roadways, Jhajjar, has filed this petition for fixation of his
pay in the scale meant for drivers, even though he has been adjusted
as a Water Carrier in the pay scale of Rs.2550-50-3200 due to a
disability suffered by him during the course of his employment.
The petitioner was appointed as a driver on 10.12.1993
on contract basis. His service were regularized on 10.12.1994. On
17.11.1999, a bus driven by him met with an accident which led to
C.M. NO.7825 OF 2009 &
CIVIL WRIT PETITION NO.11006 OF 2004 :{ 2 }:
amputation of his left arm. He suffered multiple injuries, but was
fortunate enough to survive. After recovering from injuries, the
petitioner joined his duty. Since the petitioner has suffered this
handicapped, General Manager, Haryana Roadways recommended
case of the petitioner for adjusting him on the post of Clerk, which
has fallen vacant on 30.11.2000 on the retirement of one Jaipal
Singh. This could not be done but the petitioner continued to perform
light duties assigned to him. Petitioner was informed by respondent
No.3 that a post of Water Carrier was available and if he was willing
to join the same, a consent letter be sent. The petitioner gave his
consent and thereafter submitted his joining report on 22.3.2004. He
was accordingly adjusted on the post of Water Carrier which carries
a pay scale of Rs.2500-3200. As a driver, the petitioner was drawing
salary in the pay scale of Rs.4000-6200. His basic salary in the year
2004 was Rs.4700/-. When the petitioner was paid reduced pay
scale after appointment as a Water Carrier, he naturally felt
aggrieved. The petitioner accordingly filed the present writ petition
saying that this order is arbitrary and discriminatory.
The petitioner would plead that he is entitled to the
protection of his pay and the benefit in terms of Section 47 of the
Persons With Disabilities (Equal Opportunity, Protection of Rights
and Full Participation) Act, 1995 (hereinafter referred to as “the Act”).
As per Section 47 of the Act, no establishment shall dispense with or
reduce in rank, an employee who acquires a disability during his
service. It is further provided that if an employee, after acquiring
disability is not suitable for the post he was holding, he could be
C.M. NO.7825 OF 2009 &
CIVIL WRIT PETITION NO.11006 OF 2004 :{ 3 }:
shifted to some other post with the same pay scale and service
benefits. Section 47 further says 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.
This writ petition was admitted on July 26, 2004.
Subsequently, written statement was filed on behalf of the
respondents. The respondents have opposed the prayer made by the
petitioner. In the reply it is disclosed that the petitioner was found
unfit for the post of driver once he met with an accident. He was
adjusted on the duty as a Yard Master, but ultimately was retired
from service being medically unfit. Subsequently, the petitioner was
appointed on an alternative job of Water Carrier in terms of
instructions dated 20.8.1992. As per the respondents, the pay of the
petitioner has been rightly fixed in the pay of scale meant for the job
of Water Carrier.
During the pendency of this writ petition, the petitioner
filed a Misc. Application No.1231 of 2008 praying that the writ petition
be disposed of in terms of the decision rendered in Civil Writ Petition
No.14037 of 2005 which would squarely cover the relief claimed by
the petitioner in the present writ petition. Notice of this application
was issued to the State. State Counsel took time to file reply. Though
no reply has been filed, but Mr.Harish Rathee, appearing for the
State, would contend that the case of the petitioner is not covered by
the judgment relied upon by the petitioner, as referred to above.
I have perused the judgment rendered in Civil Writ
C.M. NO.7825 OF 2009 &
CIVIL WRIT PETITION NO.11006 OF 2004 :{ 4 }:
Petition No.14037 of 2005. While deciding this case, Division Bench
of this Court has further relied upon another Division Bench
judgment of this Court in the case of Rupender Singh Vs. State of
Haryana and others, 2006(2) PLR 469. The Court in this case, after
relying on the provisions of Section 47 of the Act, has held that an
employee, who has suffered disability during service, cannot be
deprived the benefit which would otherwise accrued to him. It was
further observed that the prohibition imposed by Section 47 of the Act
against the retirement of an employee, who has acquired disability in
service, was completely ignored by the respondents. It is also
observed that firstly the petitioner could not be retired; secondly
efforts ought to have been made by adjusting him on a post carrying
equal pay scale and thirdly when no post was available then the
petitioner was to be permitted to work on supernumerary post.
Mr.Rathee, who had represented the State in CWP
No.14037 of 2005, like in the present case, had argued that post of
the Driver stood excluded from the purview of the Act through a
notification dated 27.6.2005. This argument raised by the State
counsel was rejected by observing that notification issued in June,
2005 would not apply to cases where orders of compulsory
retirement etc. were passed prior to June 2005 as is the position in
the instant case. The same consideration would equally apply to the
facts of the present case. A notification which is issued in the year
2005 would not govern the case of the petitioner, as he suffered the
disability in the year 1999 and has been offered an alternative
appointment on 16.7.2004. In fact, the retirement of the petitioner
C.M. NO.7825 OF 2009 &
CIVIL WRIT PETITION NO.11006 OF 2004 :{ 5 }:
cannot be held justified as the abovesaid notification was still born,
when the petitioner was retired on account of disability. The
provisions of Section 47 of the Act clearly stood in the way of the
respondents to pass the order of retirement or to justify this action
and stand. The issues involved in the present petition, in my view,
are covered by the decision in Civil Writ Petition No.14037 of 2005
decided on 27.11.2006. Incidentally, Special Leave Petition filed
against this order has been dismissed by the Hon’ble Supreme Court
on 16.2.2009 and, thus, this judgment has acquired finality.
Accordingly, the prayer of the petitioner made in the present petition
deserves to be allowed being covered by the decision rendered in
Civil Writ Petition No.14037 of 2005.
The writ petition is accordingly allowed. Respondents are
directed to fix the pay of the petitioner in the scale of Rs.4000-6200/-
from the date of his appointment to the post of Water Carrier.
July 14, 2009 ( RANJIT SINGH ) ramesh JUDGE