AMOL RATTAN SINGH,J. - (1.) By this petition filed under the provisions of Article 226 of the Constitution of India, the petitioner seeks issuance of a writ in the nature of certiorari, quashing the letter dated 14.06.2016 (Annexure P-2) and order dated 15.09.2017 (Annexure P-5), issued by respondent no.2, sanctioning only extra ordinary leave, while declining the request of the petitioner for payment of salary to him, for the period that he could not attend his duties, on account of permanent physical impairment of 75%; with a further prayer made for issuance of a writ in the nature of mandamus, directing the respondents to grant the petitioner salary and allowances for the entire period from 08.05.2015 to 20.06.2017, in terms of Section 47 of the Rights of Persons with Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act, 1995, as 'continued' under "The Rights of Persons with Disabilities Act, 2016".Notice of motion having been issued in this petition in the year 2017 itself, with various orders passed which are not necessary to be gone into in detail at this stage. However, the order passed on 15.12.2015 is being reproduced as follows:- "All cases listed today have been taken up for hearing by way of video conferencing because of the situation existing due to the COVID-19 pandemic. Before going onto the contentions raised by the State, it is first necessary to take on record the opinion given by the Board of Doctors of the Post Graduate Institute of Medical Sciences, Rohtak, dated 25.06.2020, as was annexed with CM No. 6161-CWP-2020 filed by the petitioner, seeking an early hearing in the petition, which application was allowed on 14.07.2020. However, the aforesaid medical opinion dated 25.06.2020 was not ordered to be taken on record and therefore, since obviously the adjudication of the case would depend very largely on the medical opinion given by the Board, the said medical opinion is ordered to be taken on record as Annexure P-6 with the accompanying petition. The said opinion reads as follows:- "Sh. Kulbir Singh Jakhar has been examined by the Special Medical Board on 25.06.2020. He has been diagnosed as a case of Hypertrophic Cardiomyopathy (HCM) disease of heart and suffering from same since 2001. He is severely symptomatic and presently in NYHA Class III. He has undergone Automated Implant able Cardioverter Defibrillator (AICD) implantation for HCM induced life threatening arrhythmias in October 2014. His investigations of ECG, Echocardiography and Cine-recording of AICD has been done. He is physically severely disabled by HCM disease and he is suffering from physical disability of 75% due to HCM disease. Opinion regarding physical disability: He is suffering from physical disability of 75% due to HCM disease." Today, learned State counsel has submitted that the petitioner, in view of the aforesaid opinion of the Board, is actually not covered by the list of illnesses enumerated in in the Schedule to the Person with Disabilities (Equal Opportunities, Protection of Rights and Full Participation), Act 1995, nor even in the subsequent Act of 2016. Clauses (r), (s) and (t) of Section 2 of the Act of 2016 read as follows:- (r) "person with benchmark disability" means a person with not less than forty per cent of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority; (s) "person with disability" means a person with long terms physical, mental, intellectual or sensory impairment which, in inter-action with barriers, hinders his full and effective participation in social equally with others; (t) "person with disability having high support needs" means a person with benchmark disability certified under clause (a) of sub-section (2) of Section 58 who needs high support." She then points to Section 20 of the said Act, which reads as follows:- "Non-discrimination in employment. (1) No Government establishment shall discriminate against any person with disability in any matter relating to employment: 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, exempt any establishment from the provisions of this section. (2) Every Government establishment shall provide reasonable accommodation and appropriate barrier free and conducive environment to employees with disability. (3) No promotion shall be denied to a person merely on the ground of disability. (4) No Government establishment shall dispense with or reduce in rank, an employee who acquires a disability during his or her service: Provided that, if an employee after acquiring disability is not suitable for the post he was holding, shall 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 is available or he attains the age of superannuation, whichever is earlier. (5) The appropriate Government may frame policies for posting and transfer of employees with disabilities." She next points to the written statement filed in reply to the petition, by the Special Secretary to the Government of Haryana, Public Works (Building and Rules) (sic) specifically to paragraph 4 therein, wherein it is shown that in Section 2 (i) of the Act of 1995, "Disability" has been defined as follows:- (i) Blindness; (ii) Low vision; (iii) Leprosy-cured; (iv) Hearing impairment; (v) Loco motor disability; (vi)Mental retardation and (vii) Mental illness She therefore submits from the said reply that since the petitioner is suffering from Cardiomyopathy (HCM) disease of heart, his illness is not covered in the said definition. Upon query to her as to what would be understood by the term "Loco motor disability", she reiterates that though otherwise Loco-motor disability would be the impairment of the functioning of the limbs, however, since that has not been specifically stated in the opinion of the Medical Board, a heart disease itself would not be 'covered in the said Act' and therefore no supernumerary post is required to be created for the petitioner and consequently, he has been posted to Headquarters, where possibly the workload would be much lesser, but where he has not joined so far and hence, the Government is unable to pay him the salary for the period that he has not joined his duty. Upon query to Mr. Arora, learned counsel for the petitioner as to why the petitioner cannot work in the Headquarters itself, in view of what is contained in Section 20 of the Act of 2016, he submits that the petitioner is unable to perform even his basic bodily function on his own and therefore the question of him going to office, whether in Rohtak or at the Headquarters in Chandigarh/Panchkula, does not arise. Though I find the attitude of the State rather surprising in the aforesaid circumstances, however, since the opinion given by the learned Board of Doctors is simply to the extent that the petitioner is "suffering from physical disability of 75% due to HCM disease", the Board of Doctors is requested to given a firm opinion on:- (i)Whether the petitioner is suffering from a loco-motor disability due to his present medical condition; (ii)Whether, on account of such disability, he is able to attend office or not; (iii)Whether or not he is completely bed-ridden; and (iv)Whether he can be considered to be a "person with disability having high support needs". Adjourned to 21.01.2021. Naturally, since the PGIMS, Rohtak, is an instrumentality of the State, the State counsel would inform the learned Director, PGIMS, Rohtak, to obtain the opinion of the Board of Doctors constituted. To be shown in the urgent motion list."
(2.) Thereafter, on 21.01.2021, the following order had been passed:- "Case heard by video conferencing. Pursuant to the order dated December 15, 2020, an opinion of the learned Board of Doctors constituted in PGIMS, Rohtak, dated 07.01.2021, is on record, stating to the effect that the petitioner, Kulbir Singh Jakhar, is suffering from 'Hypertrophic Cardiomyopathy (HCM)' heart disease and is physically disabled and that he is also suffering from a loco motor disability, and on account of his permanent, physical impairment which constitutes 75%- 100% disability, he is not able to attend office because he is severely symptomatic. It is further written that though he is not completely bed ridden, he becomes symptomatic even on the slightest of physical activity. Lastly, it is stated that he a person with a disability having high support needs. In the light of the aforesaid report, learned State counsel would also take instructions as to why then the Government is not creating a supemumary post for the petitioner who obviously is unable to work at all, in terms of the provisions of the Right of Persons with Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act, 1995. Adjourned to 10.02.2021. An affidavit of the Additional Chief Secretary/Principal Secretary to Government of Haryana, Department of Public Works (B&R), be also filed at least 3 days before the next date of hearing, giving therein an answer to the aforesaid query of this court. To be shown in the urgent motion list."
(3.) Pursuant to the above order dated 21.01.2021, an affidavit of Sh. Alok Nigam, Addl. Chief Secretary to the Government of Haryana, Department of Public Works (B&R), dated 09.02.2021, has been filed, stating therein that a supemumary post of Executive Engineer (Civil) has been created for the petitioner since 21.04.2015, which would continue to exist till either his retirement from service (obviously as per his normal date of superannuation in terms of the Haryana Civil Service Rules, 2016) or till his joining duty after his medical fitness, whichever is earlier.;