Hon'ble Kashi Nath Pandey,J.
Heard Sri Sheshadri Trivedi, learned counsel for the appellant. Sri A.N. Rai appears for the respondents.
In this intra court appeal, the petitioner-appellant enrolled in Central Industrial Security Force as a constable on 26.8.1988 and discharged on 26.6.1995 under Rule 38 of the CCS Rules, is aggrieved by the judgment of the learned Single Judge dated 7.8.2008 by which he has dismissed the writ petition on the ground that the petitioner was discharged after he was examined and verified by the panel of Doctors and was found to be suffering from 'schizophrenia', which prevented him to carry arm and to perform onerous duties of para military force.
Learned Single Judge considered his disability in the light of the representation dated 25.6.1997 and for giving him benefit of Section 47 Protection of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as PWD Act). He found that in view of notification dated 10.9.2002 issued by the Central Government under Section 47 of the PWD Act, exempting all categories of posts of 'combatant personnel' only of the Central Para Military Forces (CPMFs) namely Central Reserve Police Force (CRPF), Border Security Force (BSF), Indo Tibetan Border Police (ITBT), Central Industrial Security Force (CISF) and Assam Rifles, from the provision of said section, the said provisions cannot be invoked or utilized by the petitioner for a sheltered or a sedentary job. The provisions of Sections 47 and 33 of the PWD Act have been exempted vide notifications No. S.O. 996 dated 10.2.2002, and S.O. 994 dated 10.2.2002 respectively for these CPMF's .
Learned Single Judge has also considered Full Bench decision of this Court in Union of India and others Vs. Mohd. Yasin Ansari and others [2006 (4) ESC 2540 (All) (FB), by which the opinion of a Single Judge delivered by one of us (Hon'ble Sunil Ambwani, J) was set aside on the ground that question purely academic was decided by the court and that no relief could be granted to the petitioner in that writ petition. It was found that the court considered only the notification dated 10.9.2002 issued in respect of Section 47 of the Disabilities Act and not the notification dated 10.9.2002 issued in respect of Section 33 of the Disabilities Act and further the army personnel could be retained only upto 40 % disability and not more.
In the present case the petitioner was also subjected to review medical board, of which the opinion of the experts was recorded as follows:-
"He is suffering from schizophrenia which is a life long disease with exacerbation and remission even with bed treatment he can have beat of disease. During the exacerbation it will be dangerous to give him arms or put him on sensitive duties. If under your departmental rules he cannot be adjusted on sedentary job then he may be considered for permanently as unfit for Industrial Security job".
The petitioner was not found fit to perform onerous duties of the force, requiring him to arms. Thus, we do not find that learned Single Judge erred in law in finding himself unable to give benefit of the PWD Act, or even under Article 21 of the Constitution of India in directing employment for any menial job.
Learned Single Judge considered the arguments of giving benefit under Section 47 of PWD Act, and found that the Act enforced from 7.2.1996 did not have retrospective effect to nullify the order of discharge dated 26.9.1995, and in any case the notifications dated 10.9.2002, exempted the protection of Section 33 and 47, to the members of CISF.
Learned Single Judge also found that the petitioner did not explain laches. Even if the averments stated in paras 17 to 21 of the writ petition were taken into consideration for condoning the delay of six years, after he was discharged, he had filed representation on 25.6.1997 and thereafter served a legal notice on 8.3.1999 and preferred the writ petition in the year 2001, after a long delay of seven years, which was not sufficiently explained by him.
The petitioner was not found entitled to disability pension on the ground he had only seven years and one month service, as against minimum 10 years. He has neither challenged the rule nor claimed disability pension in the writ petition.
The reliance placed on a judgment of Andhra Pradesh in A. Seshaiah vs. Commandant, Central Industrial Security Force, Unit Hyderabad [2005 (106) FLR 1156] is not helpful inasmuch as in para 12 of the judgment, the Andhra Pradesh High Court took notice of notification dated 10.9.2002 issued under Section 33 of the Act. The notification of the same date under Section 47 of the PWD Act was not brought to the notice of the High Court. The judgment in Kunal Singh Vs. Union of India and another [AIR 2003 SC 1623] is also not helpful for the same reason that the notification dated 10.9.2002, exempted the protection given under Section 47 of the Act, and that the petitioner has not challenged the rule which denies him disability pension.
The Special Appeal is dismissed.
Order Date :- 21.9.2010 nethra