- (1.) There was one Suresh who was working as Constable in the Police Department, Haryana. He was enrolled as such on 27.10.1991. He suffered a paralytic attack in the year 1995 and continued in service till the year 2003. He was however, assigned light duty by deputing him on the post of Assistant Mohrar Malkhana. On 26.10.2005, he was referred to the Medical Superintendent, P.G.I.M.S, Rohtak to seek opinion whether he is mentally and physically fit to serve the department. The Secretary, Special Medical Board, P.G.I.M.S., Rohtak vide his letter dated 17.5.2006 declared him unfit for further service in Haryana Police. Accordingly, invoking the provisions of Rule 5.11 and 5.17 of the Punjab Civil Services Rules Vol-II read with rule 9.10 of Punjab Police Rules , Vol-1, he was retired from service on the ground of invalidity at the young age of about 35/36 years. Thereafter he died on 22.3.2007. His widow has approached this Court with a prayer for quashing order dated 8.8.2006 retiring her late husband. The main ground pleaded by her is that there is protection provided to invalid employee by Section 47 of the Person with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for brevity the 1995 Act). Accordingly, it has been claimed that the order dated 8.8.2006 passed by respondent No. 3 is liable to be set aside and the petitioner is entitled to full salary from the date of retirement of her husband (8.8.2006) till the date of death of her husband (22.32007) along with all consequential benefits.
(2.) It is undisputed that Section 47 gives wide protection to employees who acquire disability during their service. The proviso appended to Section 47(1) goes to the extent 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. Section 47 of the 1995 Act is reproduced for a ready reference : "Section 47- Non-discrimination in Government employment : No establishment shall dispense with, or reduce in rank, on employee who acquires disability during his service. Provided that, if any employee, after acquiring disability is not suitable for the post he was holding, could be spitted to some other post with the same pay scale and service benefits. Provided further that 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."
(3.) The aforementioned provision came up for consideration before Hon'ble the Supreme Court in the case of Kunal Singh v. Union of India, 2003 4 SCC 524, which has been followed in the case of Bhagwan Dass & Anr. v. Punjab State Electricity Board, 2008 2 SLR 32 (SC)]. The view taken by Hon'ble the Supreme Court has also been followed by this Court in the case of Rupinder Singh v. State of Haryana and others, CWP No. 15447 of 2004 dated on 22.4.2006. The view taken by their Lordship in Kunal Singh's case reads thus : "It must be remembered that person does not acquire or suffer disability by choice. An employee, who acquires disability during his service, is sought to be protected under Section 47 of the Act specifically. Such employee, acquiring disability, if not protected, would not only suffer himself, but possible all those who depend on him would also suffer. The very framed and contents of Section 47 clearly indicate its mandatory nature. The very opening part of the Section reads "no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service". The Section further provides 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; if it is not possible to adjust the employee against any post he will be kept on a Supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. Added to this no promotion shall be denied to a person merely on the ground of his disability as is evident from Sub-section (2) of Section 47.";