HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE MANMOHAN SINGH
PRADEEP NANDRAJOG, J.
1. In May 1990 the petitioner was inducted in ITBP, a Central Para- Military Force, as a Head Constable (Draftsman) which was a combatised post.
2. In the year 1993 the petitioner was diagnosed as suffering from Eale‟s disease in his right eye. Eale‟s disease is an ocular disease characterized by inflammation and possible blockage of retinal blood vessels, abnormal growth of new blood vessels and recurrent retinal and vitreous hemorrhage.
3. A Medical Board was constituted to examine the petitioner, which opined that the petitioner was completely and permanently incapacitated to perform the duties of Head Constable (Draftsman). Based on the opinion of the Medical Board, the Competent Authority i.e. Commandant, M & SIR, ITBP issued a notice dated December 06, 1993 to the petitioner requiring him to show cause as to why his services should not be terminated. It was followed by an order dated January 04, 1994 terminating the services of the petitioner due to the disability detected.
4. The petitioner made several representations to the respondents drawing attention to the decision reported as AIR 1995 SC 519 Narender Kumar Chandla v. State of Haryana & Ors. and urged that as per law declared therein the respondents should provide sheltered employment to the petitioner commensurate with his abilities.
5. Not receiving any response to the representations, the petitioner filed a writ petition which was registered as Civil Writ No.944/1995 in this Court which was disposed of vide order dated July 31, 1996, relevant part whereof reads as under:-
“The respondents in their reply on the affidavit of Shri R.P. Chauhan, Commandant ITBP, New Delhi have not at all made any reference to the petitioner‟s representations. We also find from the reply that the petitioner‟s representations have not at all been considered in the light of decision of the Supreme Court in Narender Kumar Chandla‟s case (supra). Petitioner‟s case is the one, which requires consideration at the hands of Director General, ITBP, in the light of observations made in Narender Kumar Chandla‟s case (supra), for which we direct the Directorate General, ITBP to examine the petitioner‟s case in the light of the ratio of the decision in Narender Kumar Chandla‟ case (supra) sympathetically for providing alternative employment. Such a decision will be duly taken within a period from eight weeks from today. The decision will be duly conveyed to the petitioner and a copy thereof be placed on the record of this case also. The petition stands disposed of.”
6. Vide memorandum dated February 17, 1997 the respondents rejected the representation made by the petitioner holding that the law declared by the Supreme Court in Narender Kumar Chandla‟s case (supra) could not be applied to a combatised force since no civilian post existed in ITBP, or to put it differently, as per the respondents there was no post available to give sheltered employment to the petitioner which would be commensurate with his abilities.
7. Aggrieved by the memorandum dated February 17, 1997 issued by the respondents the petitioner filed a contempt petition being CCP No.264- A/1997 before this Court stating therein that the respondents have willfully disobeyed the directions passed by this Court in Civil Writ No.944/1995. It was further stated by the petitioner therein that the stand taken by the respondents of no civilian post existing in ITBP is fallacious. To prove the same the petitioner placed reliance upon the decision of the Supreme Court reported as (1994) 28 Administrative Tribunals Cases 358 Narottam Dass Beshtoo B.P. Dobhal v Union of India & Ors. and some documents which record that the office order dated September 19, 1989 by virtue of which ITBP was combatised was not implemented by the respondents as late as till the year 1995.
8. Vide order dated September 22, 1998 a learned Single Judge of this Court disposed of the contempt petition filed by the petitioner in the following terms:-
“On the face of categorical averments as made in the communication dated February 17, 1997 as well as in the reply affidavit of the respondent no relief can be granted in this contempt petition. It will be open to the petitioner to pursue his remedy and challenge the averments of the respondent that no civilian post exists in the Force as at present.”
9. In view of the aforesaid order dated September 22, 1998 passed by the learned Single Judge the petitioner filed the present petition highlighting once again that stand taken by the respondents of there being no civilian post in ITBP is wrong.
10. As per the counter affidavit, the respondents reiterate that no civilian post exist in ITBP. It is pleaded that the order dated September 19, 1989 by virtue of which ITBP was combatised has been fully implemented by the respondents in the year 1995. The respondents have produced copy of the memorandum dated March 15, 1995 issued by the Directorate General, ITBP, Ministry of Home Affairs.
11. A perusal of the rejoinder filed by the petitioner would reveal that the claim of the respondents in their counter affidavit i.e. that no civilian posts exist in ITBP has not seriously controverted.
12. During hearing of the present petition, following 2 submissions were advanced by the learned counsel for the petitioner:-
A. That the mandate of Section 47 of the „Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995‟ (hereinafter referred to as the „Act‟) is that services of no government employee who has acquired a disability during service should be dispensed with and that where a disabled employee is found not suitable for the post he is holding he should be shifted to some other post with the same pay scale and service benefits. In view of said mandate of Section 47 of the Act the respondents are duty bound to provide an alternative employment to the petitioner.
B. That in the decision reported as AIR 1995 SC 519 Narender Kumar Chandla v State of Haryana & Ors. it was held by the Supreme Court that Article 21 of the Constitution of India protects the right of livelihood as an integral facet of right to life and when an employee is afflicted with a disease due to which he is unable to perform the duties of the post he was holding the employer must make every endeavor to adjust said employee in a post in which he would able to perform satisfactorily. A similar view was expressed by a Division Bench of this Court in the decision reported as 156 (2009) DLT 481 (DB) Delhi Transport Corporation v Harpal Singh. In view of such authoritative pronouncement of law the respondents could not have terminated the services of the petitioner but ought to have provided an alternative employment to him.
13. Per contra, learned counsel appearing for the respondents argued as under:-
A That Section 47 of the Act has no application in the present case.
B That dictum of law laid down by the Supreme Court in Narender Kumar Chandla‟s case (supra) cannot be applied in the present case in view of the facts that ITBP is a combatised force and no civilian posts exist in ITBP.
14. Whether the provisions of Section 47 of the Act apply in the present case?
15. Section 47 of the Act reads as under:-
“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 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 in available 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.” (Emphasis Supplied)
16. In exercise of the powers conferred by proviso to sub-section (2) to Section 47 of the Act, the Ministry of Social Justice and Empowerment issued a notification dated 10.09.2002 with regard to applicability of Section 47 of the Act to Central Para-Military Forces, which reads as under:-
“NOTIFICATION New Delhi, the 10th September, 2002 S.O. 995 (E)- In exercise of the powers conferred by proviso to Section 47 of The Persons With Disabilities (Equal Opportunities, Protection of Rights And Full Participation) Act, 1995 (1 of 1996) the Central Government having regard to the type of work carried on hereby exempt 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 (ITBP), Central Industrial Security Force (CISF) and Assam Rifles from the provisions of the said section.”
17. It is not in dispute that the petitioner was inducted in ITBP on a combatised post i.e. Head Constable (Draftsman).
18. In view of the aforesaid notification dated September 10, 2002 exempting the combatant personnel of the Central Para-Military Forces including ITBP from the provisions of Section 47 of the Act we find force in the submission advanced by the respondents that Section 47 of the Act has no application in the present case.
19. In this regard, we may also note the decision of a Division Bench of this Court in WP(C) No.254/2012 titled as ‘Sandeep Singh v Union of India & Ors.’ decided on February 22, 2012. In the said case, the petitioner who was appointed as Constable (General Duty) in CRPF acquired a disability during the course of service. The Medical Board which examined the petitioner opined that the petitioner was completely and permanently incapacitated to perform the duties of Constable (General Duty). Based on the opinion of the Medical Board, the department terminated the services of the petitioner, which action of the respondents was challenged by the petitioner by filing a petition under Article 226 of the Constitution of India before a Division Bench of this Court. One of the contentions advanced by the petitioner was that the department could not have boarded out the petitioner in view of the provisions of Section 47 of the Act. Noting the notification dated September 10, 2002 the Division Bench repelled the aforesaid contention advanced by the petitioner in the following terms:-
“The plea of the petitioner that he is entitled to be retained in the service in view of Section 47 of The Persons With Disabilities (Equal Opportunities, Protection of Rights And Full Participation) Act, 1995 also cannot be accepted due to the notification of the Govt. dated 10th September, 2002 issued in exercise of the power conferred by the proviso to Section 47 of the said Act exempting all categories of the post of “combatant persons” of the CRPF from the provisions of the said Act.”
20. The matter relating to the applicability of Section 47 of the Act to the present case can also be approached from another angle.
21. While examining the applicability of Section 47 of the Act, in a given case, in the decision reported as 100 (2002) DLT 111 (DB) Delhi Transport Corporation v Rajbir Singh a Division Bench of this Court observed as under:-
“31. So far as submission of Mr. Vibhu Shanker to the effect that the said Act could not be given retrospective effect is concerned, the same is stated to be rejected. The services of the respondent had not been terminated prior to coming into force of the said Act and thus, the question of the said Act becoming enforceable retrospectively does not and cannot arise.
32. Whether a substantive right can be taken away by giving retrospective effect to a statute is not in question in these matters. Accident might have occurred in 1995, and the Act might have come into force on 7.2.1996 but the submission of Mr. Vibhu Shanker that the date of acquisition of disability must be considered to be the cut off date for the purpose of Section 47 of the Act cannot be accepted. After coming into force of the said Act only the order impugned was passed- If prior to coming into force of the said Act, services had been terminated the matter would have been different but as the services were not terminated till the Act came into force the same must be held to be bad in law.” (Emphasis Supplied)
22. In the same context, in the decision reported as 156 (2009) DLT 481 (DB) Delhi Transport Corporation v Harpal Singh, a Division Bench of this Court observed as under:-
“15. Thus, if a person is in employment may be his disability might have been acquired before the date the Act came into force, the benefit of Section 47 of the Act needs to be conferred upon the petitioner if he is sought to be terminated after coming into force of the Act. However, the said Act does not have any retrospective operation. To that extent the judgment of the learned Single Judge cannot be upheld.
25. In these circumstances, while holding that the provisions of Section 47 of the Act cannot be given retrospective operation but in a pending proceedings, the benefit of the provisions can certainly be extended. This is also the mandate of Article 41 of the Constitution of India. Thus, we do not find any infirmity in the judgment of the learned Single Judge or the award given by the Labor Court.” (Emphasis Supplied)
23. From the aforesaid two judicial decisions, the law relating to applicability of Section 47 of the Act in a given case can be summarized as under:-
I. Where a government employee acquires a disability after coming into force of the Act Section 47 of the Act would apply in such cases.
II. Where a government employee acquires a disability prior to coming into force of the Act but his services are terminated after coming into force of the Act, Section 47 of the Act would apply in such cases.
III. Where a government employee acquires a disability and his services are terminated prior to coming into force of the Act, Section 47 of the Act would not apply in such cases for the reason the Act does not have retrospective operation.
24. In the instant case, the petitioner was diagnosed as suffering from Eale‟s disease in the year 1993. The services of the petitioner were terminated on January 04, 1994. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 came into force on February 07, 1996. It is evident that the petitioner acquired a disability and his services were terminated prior to coming into force of the Act. Clearly, the present case falls under category III noted above and thus Section 47 of the Act does not apply in the present case.
25. As regards the second submission advanced by the petitioner predicated upon the decisions of the Supreme Court and this Court in Narender Kumar Chandla and Harpal Singh‟s cases (supra) respectively, the said cases are clearly distinguishable for the reason the petitioner in the present case was appointed on a combatised post. The respondents have claimed that ITBP is a combatised post and there are no civilian posts exist in ITBP against which the petitioner could be employed, which claim of the respondents could not be refuted by the petitioner and we have no reasons to doubt the same.
26. In view of the above discussion, we find no merit in the present petition. The same is accordingly dismissed but without there being any order as to costs.
(PRADEEP NANDRAJOG) JUDGE SEPTEMBER 25, 2012 dk (MANMOHAN SINGH) JUDGE