KULDIP SINGH,J. - (1.) Petitioner No. 1-Shyam Lal Verma was working as a teacher since 27.7.1970 in respondent No. 5-School i.e. Baba Sharvan Nath Senior Secondary School, which is a Government Aided Privately Managed School. However, the sanction of the post was received on 23.12.1971. The date of birth of petitioner No. 1 is 12.9.1947. Unfortunately, on 3.6.1991, petitioner No. 1 suffered head injury, on account of which he remained under treatment in PGI Chandigarh. He was operated on 4.6.1991 for compound depressed fracture left temporal region and was discharged from PGI Chandigarh, on 11.6.1991. Due to the head injury, he suffered 100% disability, as certified by the PGI Chandigarh, vide medical certificate Annexure-P-1. Since his power to speak was adversely affected, he was unable to teach the students and was unable to attend the duties. He remained on medical leave from 1.7.1991 to 6.9.1991, then earned leave from 7.9.1991 to 20.10.1991 and thereafter, extra ordinary leave (without pay) from 21.10.1991 to 20.10.1996 i.e. for five years. Thereafter, he was informed by the respondent No. 5-school that there is no provision for further leave without pay after the expiry of five years leave. The petitioner was unable to attend the duty. He requested for further extension of leave without pay. Since it was an unique case, respondent No. 5-School addressed a communication dated 13.12.1996 and sought the guidance from the District Primary Education Officer, Kurukshetra (respondent No. 4). Again, such guidance was sought, vide letter dated 3.2.1997 (Annexure-P- 3). Respondent No. 4 sought guidance from the Director, Primary Education, Haryana (respondent No. 3), vide letter dated 27.2.1997 (Annexure-P-4). However, no order was passed on extra ordinary leave beyond five years and ultimately, the petitioner submitted an application dated 6.10.2002 (Annexure-P-5) to the respondent No. 5-School, requesting for voluntary retirement with effect from 5.1.2003, by serving three months' notice. He also submitted another application dated 6.10.2002 (Annexure- P-6) on the same day for release of his retiral benefits like gratuity, leave encashment and pension. Respondent No. 5-School, vide letter dated 31.12.2002 (Annexure-P-7) again referred the matter for guidance to respondent No. 4 i.e. the District Primary Education Officer, Kurukshetra, after submitting all the necessary documents and the medical certificates. The District Primary Education Officer, Kurukshetra, referred the case of petitioner No. 1 for voluntary retirement and pensionary benefits to the Director, Primary Education, Haryana (respondent No. 3), vide letter dated 28.1.2003 (Annexure-P-8). The pensionary benefits were not paid and it was claimed that the Haryana Government has introduced the scheme to grant pensionary and other retiral benefits to the teachers of private aided schools by notifying 'The Haryana Aided Schools (Pension and Contributory Provident Fund) Rules, 1999' (in short 'the Rules of 1999'), and the same was made applicable to the employees in Government Aided Schools, who were in service on 11.5.1998. The said rules were notified on 31.5.1999. However, in the year 2001, new pension scheme i.e. 'The Haryana Aided Schools (Special Pension and Contributory Provident Fund) Rules, 2001' (in short 'the Rules of 2001) was framed after repealing the Rules of 1999 and the same was notified on 29.3.2001, which was also made applicable from 11.5.1998. It is stated that Rule 9 of the Rules of 2001 provides for invalid pension to the employees, who are declared physically invalid for service because of bodily and mental infirmity, with the approval of the director. Likewise, Rule 11 of the Rules of 2001 provides for pension to the employees, who have completed 20 years of service or attained 50 years of age, are also eligible to seek voluntary retirement by serving 3 months' notice. It was further stated that the Government of India enacted 'Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (in short 'the Act of 1995), for granting protection to the persons with disability. Section 47 of the Act of 1995 deals with an employee, who is already in service and acquires disability in service, for which certain protections have been provided and under the said section, no discrimination can  be made. Section 47 of the Act of 1995 prohibits certain discrimination on the basis of disability.
(2.) The petitioner prays for grant of pensionary benefits by accepting his request for voluntary retirement with effect from 6.1.2003 and also grant him protection under Section 47 of the Act of 1995 or any other order.
(3.) The official respondents No. 2 to 4 have taken the stand that the Haryana Aided Schools (Special Pension and Contributory Provident Fund) Rules, 2001, are not applicable to the case of petitioner No. 1 since he has failed to submit option and undertaking, as required under Rule (3) of Rules of 2001. It is stated that the option was to be exercised within three months from the date of publication of the rules in the official gazette. The facts are not denied. It was stated that petitioner No. 1 is away from duty with effect from 20.10.1996. It is admitted that he had sought voluntary retirement, as claimed by him. It is stated that from 23.12.1971 to 20.10.1991, he has worked with respondent-School for 19 years, 9 months and 28 days and, therefore, he does not complete 20 years of statutory service to seek voluntary retirement. It was stated that the resignation of the petitioner was approved, but the pension was declined by the office, vide order No. Audit/2005/1421 dated 19.5.2005 (Annexure-P-12). No appeal was filed against the said order before the appellate authority under the Haryana School Education Act, 1995, and Haryana School Education Rules, 2003.;