JUDGMENT
Mukundakam Sharma, J.
1. This petition is directed against the order passed by the respondents declaring the petitioner as permanently incapacitated for further service of any kind in the Indian Army on medical grounds and also the order dated 11.10.2001 whereby the petitioner was retired from service for his personal health on invalid pension with effect from 11.10.2001.
2. The petitioner joined the Special Service Bureau (SSB) under the Ministry of Home Affairs as a Constable on 29.5.1990. At the time of his appointment he was declared medically fit for appointment in government service by the Medical Officer in 18 Army Rifle, Lunglie. After appointment the petitioner completed his basic and recruit training held at T.C. SSB, Haflong in the state of Assam, which training he had undertaken from 23.7.1990 to 15.4.1991. The petitioner successfully completed the aforesaid training. Thereafter he was promoted to the rank of LNK(GD) and NK (GD) on 2.4.1994 and 1.11.1996 respectively, after fulfillling all the eligibility terms and conditions for promotion to the said ranks. During the year 1998, the petitioner had undergone medical treatment in Unit M.I. Room GC, SSB Lunglei and the Unit Medical Officer advised him to consult with an Orthopedic Surgeon. Consequently, the petitioner proceeded on sanctioned 30 days earned leave with effect from 17.2.1998 to 18.3.1998 to undertake medical treatment as advised. The petitioner remained under medical treatment at Sadar Hospital, Arrah in Bihar. The concerned medical authority declared him fit for duty on 13.5.1998 and he resumed duty on 18.5.1998 at GC Lunglei. In the written application submitted by him at the time of resuming duty, he stated that he was suffering from pain in the left feet since December 1997. The petitioner again proceeded on 45 days earned leave to get himself treated once again as he was again suffering pain and thereafter he again resumed duty on 12.8.1998 after treatment. As per the medical report submitted by him, he remained under medical treatment at the Primary Health Centre, Peero (Muzafarpur). Thereafter the petitioner has been taking medical treatment from time to time, being allowed to receive the same being on medical leave. The petitioner was thereafter directed to appear before the Medical Board at Civil Hospital, Lunglei, vide office order dated 4.10.2000. After a thorough medical examination carried out by the Medical Board, the Board considered him to be completely and permanently incapacitated for further service of any kind in the department to which he belongs to due to disease of A.V.N. Femural Head Left Side. The Board, however, opined that he may be fit to do sedentary work of LDC etc. In accordance with the recommendations of the Medical Board, the petitioner was invalided out from service with effect from 11.10.2001 and his name was struck off from the strength of department from the same date.
3. The contention that is raised in this petition is that the petitioner had rendered about 11 years of unblemished service and, therefore, before declaring the petitioner to be permanently incapacitated for further service of any kind in the department, the respondents should have accepted the recommendation of the same Medical Board, who opined that the petitioner is fit for further service of less laborious character than he had been doing and that he may be fit to work as LDC etc. The aforesaid submission of the counsel for the petitioner was refuted by the counsel for the respondent contending, inter alia, that there is no such sedentary work nor any post of LDC available in the combatised cadre to which the petitioner belongs. It was submitted by him that the petitioner was completely and permanently incapacitated for further service in the department and, therefore, he was released from service. It was also submitted that the petitioner would be entitled for invalid pension which would be granted to him on receipt of pension papers, which the petitioner has failed to submit.
4. Counsel for the petitioner, however, placed reliance on the provisions of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The aforesaid provision came up for consideration before the Supreme Court in the case of Kunal Singh v. Union of India and another .
5. Counsel for the petitioner has placed strong reliance on the aforesaid provision. The aforesaid submission of the counsel for the petitioner was also refuted by the counsel for the respondents by placing reliance on a notification dated 16th August, 2004, which was issued by the Central Government. Copy of the said notification, which was issued on 16th August, 2004, is placed on record, which discloses that the Central Government having regard to the type of work carried on by the combatant personnel of the Special Service Bureau (SSB) exempted all categories of posts of “combatant personnel” of the Special Service Bureau (SSB) under the Ministry of Home Affairs from the applicability of the provisions of the aforesaid Section.
6. In the light of the aforesaid submissions of the counsel for the parties, we have looked into the records and the provisions of the said Act as also the mandate of the aforesaid circular issued by the Central Government. In view of the health position of the petitioner and long medical treatment received by him, the petitioner was directed to appear before the Medical Board at Civil Hospital, Lunglei by office order dated 4.10.2000. In compliance thereof the petitioner also appeared before the Medical Board. Board gave opinion that the petitioner is completely and permanently incapacitated for further service of any kind in the department to which he belongs in view of AVN Femural Head Left Side. The Board also opined that he may be fit to do work in the nature of sedentary work of lower division clerk, etc.
7. The respondents considered the aforesaid opinion of the Medical Board. Even thereafter the petitioner was granted one more opportunity to submit his representation, if any, against his invalidation. The respondents also intimated the petitioner by order dated 9.10.2000 intimating him that he is to retire on invalid pension after expiry of one month of the issue of the said order in pursuance of rules subject to petitioner’s desire to retire from an early date and request for review medical examination within one month. As against the said communication, the petitioner submitted a written application on 10.10.2001 requesting to allow him to proceed on retirement with effect from 11.10.2001 i.e. before the expiry of one month period. The said request of the petitioner was accepted by the respondents and he was allowed to proceed on invalid retirement with effect from 11.10.2001 as requested by him. In his letter the petitioner also requested for giving him alternative appointment. The respondents rejected the said prayer on the ground that there is no sedentary post available in the combatised department to which the petitioner belongs. The decision of the respondents to retire the petitioner on invalid pension after the expiry of one month from the date of issue of the said order was based on the medical report received from the Medical Board.
8. The petitioner accepted the aforesaid opinion but he did represent before the respondents that he should be given an alternative appointment. The said prayer was rejected by the respondents holding that there is no alternative appointment available with the respondents which was in the nature of clerical cadre in the group centre and, therefore the aforesaid prayer of adjustment against clerical cadre was held to be not tenable.
9. However, the provisions of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 are mandatory in view of the decision in Kunal Singh (supra) rendered by the Supreme Court in that regard. The Supreme Court has held that 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 paragraph 12 of the said judgment, it was held thus:
“Merely because under Rule 38 of CCS (Pension) Rules, 1972, the appellant got invalidity pension is no ground to deny the protection, mandatorily made available to the appellant under Section 47 of the Act. Once it is held that the appellant has acquired disability during his service and if found not suitable for the post he was holding, he could be shifted to some other post with same pay scale and service benefits; if it was not possible to adjust him against any post, he could be kept on a supernumerary post until a suitable post was available or he attains the age of superannuation, whichever is earlier. It appears no such efforts were made by the respondents. They have proceeded to hold that he was permanently incapacitated to continue in service without considering the effect of other provision of Section 47 of the Act.”
10. At the relevant time when the petitioner was boarded out on the medical ground there was no exemption granted in respect of the categories of posts of combatant personnel of the Special Service Bureau under the Ministry of Home Affairs. The circular relied upon by the respondents does not indicate that it was intended to have retrospective effect. As the circular issued ex facie indicates that it is prospective in nature, the said exemption would be applicable only with effect from 16th August, 2004.
11. Considering the entire facts and circumstances of the case and having regard to the fact that now a notification has been issued by the Central Government on 16th August, 2004 whereby all categories of persons of combatant personnel of the Special Service Bureau under the Ministry of Home Affairs have been exempted from applicability of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, the petitioner cannot be directed to be taken back on service with effect from 16th August, 2004. However, from the date of his retirement till 16th August, 2004, the petitioner was entitled to be considered under the aforesaid beneficial provision, which is held to be mandatory by the Supreme Court also.
12. Therefore, in the peculiar facts and circumstances of this case, we order for payment of salary and allowances to the petitioner of the post which he was holding at the time of invalidation from service with effect from 11.10.2001. In case no sanctioned post was available for the period from 11.10.2001 to 16.8.2004 with the respondents, the petitioner shall be treated as holding a supernumerary post as was observed by the Supreme Court in the aforesaid decision of Kunal Singh (supra) and he shall be paid all pay and allowances for the said period. Benefit of the aforesaid service shall also be available to the petitioner for the purpose of computation of his pension.
13. The writ petition is allowed to the aforesaid extent directing the respondents to release to the petitioner his pay and allowances for the period from 11.10.2001 to 16.8.2004 on the same rank from which the petitioner was invalidated with effect from 11.10.2001. The respondents are also directed to give benefit of the said period of service for the purpose of computation of pension of the petitioner as well.
14. In terms of the aforesaid observations and directions, the writ petition stands disposed of.