- (1.) TARUN Agarwala, J. Heard Sri Sheshadri Trivedi, the learned counsel for the petitioner and Sri A. N. Roy, the learned counsel for the respondents.
(2.) THE petitioner was appointed as a constable in Central Industrial Security Force and was posed at Mathura Refinery of the Indian Oil Company at Mathura. THE petitioner fell ill and was admitted to the mental hospital on 17. 4. 1995 and was discharged on 19. 6. 1995. THEreafter, it transpires, that medical board was constituted in which the petitioner was again examined by a panel of doctors and a certificate was issued on 4. 7. 1995 holding that the petitioner was suffering from a psychotic disorder namely, schizophrenia and that the petitioner was unfit for a security job. THE medical board, however, recommended that if the departmental rules permit, the petitioner could be considered for a sedentary job. It transpires that review board was constituted and the petitioner was again examined by a panel of doctors. The review board gave a certificate dated 22. 8. 1995 holding that the petitioner was not fit for a security job either armed or unarmed and, further held that in view of the disease which the petitioner possesses, he was also unfit for any sedentary job. In view of the aforesaid, the petitioner was discharged from service by an order dated 26. 9. 1995. It further transpires that the authorities issued a letter to the petitioner for appointing a member of his family on compassionate grounds. It further transpires that the petitioner as well as his wife refused to accept such appointment on 11. 5. 1996. The matter rested at that but after some time, the petitioner made a representation on 25. 6. 1997 for reconsideration of his order of discharge on the ground of mental disability and in the alternative prayed that an appointment on compassionate grounds be provided to his brother. It is alleged that the said representation remained pending and, accordingly a legal notice was issued to the respondents by a notice dated 8. 3. 1999 and eventually when nothing was done, the petitioner filed the present writ petition in March 2001 praying for the quashing of the order of discharge dated 26. 9. 1995 and further directing the respondents to provide him a sedentary job.
(3.) THE learned counsel for the petitioner invited the attention of the Court to the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the Disabilities Act) and submitted that in view of the provision of Section 47 of the said Act, it became mandatory upon the respondents to provide him with an alternate job. THE learned counsel submitted that the aforesaid Act and the provisions contained therein would also apply to a case where a decision had already been taken prior to the enforcement of the Act. THE learned counsel submitted that Disabilities Act is a beneficial piece of legislation which has been enacted with the object of eliminating discrimination against persons with disabilities and that the Act calls for a positive obligation on the State and its authorities to eliminate such discrimination. On the other hand, the learned counsel for the respondents submitted that the Disabilities Act came into force with effect from 7. 2. 1996, whereas, the order of discharge was passed on 26. 9. 1995 and that the Disabilities Act could not be taken into consideration nor can the said Act have retrospective effect to nullify an order passed prior to the enforcement of the Act. Further, the learned counsel for the respondents submitted that by a notification dated 10. 9. 2002, issued under Section 47 of the Disabilities Act, the post of combatant personnel has been exempted from the rigours of the Disabilities Act and that the said notification has been upheld by a Full Bench of this Court in Union of India and others v. Mohd. Yasin Ansari and others, (2006) 4 ESC 2540.;