Sandeep Mehta, J. - (1.) BY way of the instant writ petition, the petitioner has approached this Court praying for the following relief : - - "It is, therefore, most respectfully prayed that this writ petition may kindly be allowed with costs and by issuance of an appropriate writ, order or direction the petitioner may please be treated on duty w.e.f.14.07.93 and be treated to be kept on supernumerary/any suitable post till his superannuation. It is further prayed that the petitioner may kindly be paid entire salary and allowances as admissible to him. He may also kindly be considered for promotion if due and be given all consequential benefits. The amount of invalid pension may kindly be directed to be adjusted against the salary due to the petitioner."
(2.) FACTS in brief are that the petitioner was selected by the Rajasthan Public Service Commission and was appointed as Excise Inspector Class -II vide order dated 27.7.1987. He joined duties on 18.8.1987. The petitioner met with an accident on 13.7.1993 and was hospitalized for a fairly long period of time. Despite prolonged treatment, no significant improvement was observed in the petitioner's condition and he was finally diagnosed as a case of traumatic quadriplegia meaning thereby that he was paralyzed in all four of his limbs. Owing to the after effects of the injuries, the petitioner was unable to discharge duties as an Excise Inspector. Despite that, he was promoted to the post of Excise Inspector Class -I in the year 1996 -97. The seniority list of Excise Inspectors Class -I issued on 23.9.1998 is placed on record of the writ petition as Annexure -2 wherein the petitioner's name finds place at S. No. 37. The petitioner was granted medical leave from 14.7.93 to 20.11.1993. But even thereafter he could not regain fitness to resume the duties. The petitioner claims that though he received the debilitating injury while performing duty, the departmental officials neither informed him about the rights and privileges accruing to him with the introduction of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter in short referred to as the Act of 1995) nor was he extended the benefits thereof. The petitioner himself having been rendered fully paralyzed was not aware of the developments brought around by the new enactment. It is claimed in the writ petition that as the petitioner acquired the disability while in service of the respondent department, he was entitled to all the benefits by being retained in service in view of the mandatory requirement of Section 47 of the Act of 1995. Since, the petitioner was rendered quadriplegic in an accident while in harness, by effect of the above provision the department was under a mandate to assign him a suitable duty which he could perform despite his disability or else, he was required to be kept in service on a supernumerary post until he attains the age of superannuation. Looking to the petitioner's physical condition, a medical board was constituted to assess and evaluate the petitioner's fitness vide letter dated 1.11.1997 Annexure -14. He was examined by the Medical Board on 6.11.1997 and the board after examining the petitioner vide communication Annexure -15 dated 3.2.1998 opined that the petitioner was unfit to resume duties. The department, however, did not take any follow up action in accordance with the Act of 1995 despite receiving the opinion of the Medical Board and the situation of stalemate continued. The petitioner could not rejoin duties on account of his immobility. The petitioner claims that somewhere in the year 2001, the officers of the respondent department advised the petitioner to seek voluntary retirement on medical grounds as he had already put in more than 10 years of service. Claiming ignorance of the provisions of Act of 1995, the petitioner allegedly relied upon the bonafides of the advise given to him by the departmental officials whom he believed to be acting in his best interest and accordingly he submitted an application Annexure -16 dated 22.5.2001 seeking voluntary retirement on medical grounds. Pursuant to the submission of the application, the petitioner was again examined by a Medical Board constituted vide order Annexure -17 dated 4.7.2001. The Medical Board gave its opinion vide letter dated 5.7.2001 reiterating that the petitioner was not fit to resume duties. The petitioner has averred in the writ petition that long after being examined by the Board he did not receive any further intimation from the department. Accordingly he filed an application Annexure -5 dated 27.5.2002 for being paid invalid pension. Thereafter the respondent department sanctioned invalid pension to the petitioner vide order Annexure -4 dated 13.3.2002 and a P.P.O. came to be issued by the respondent No. 2 to the petitioner on 20.6.2003 granting him invalid pension by treating his service to be of 13 years 10 months 19 days. The petitioner claims that despite having submitted an application for voluntary retirement on medical grounds, no official order retiring him from service was ever passed. However, without passing any order retiring the petitioner from service, the respondents sanctioned invalid pension to the petitioner from the date of the Medical Board's opinion i.e. 5.7.2001. The petitioner has approached this Court by way of the instant writ petition claiming that he deserves to be extended the benefit of Section 47 of the Act of 1995 and praying that the respondents be directed to continue the petitioner in regular service by assigning him supernumerary post in accordance with Section 47 of the Act of 1995. It is also averred that the petitioner had prayed for voluntary retirement on medical grounds w.e.f. 1.6.2001 but the application was never decided and without passing any retirement order, invalid pension was sanctioned to the petitioner w.e.f. 3.7.2001. The action is challenged as being grossly illegal and arbitrary. It is further claimed that the period during which the petitioner could not resume duties on account of his ailment was unjustly treated as extra ordinary leave by orders Annexure -7, 8 and 9. Validity of the said orders is also under challenge in this writ petition.
(3.) IN reply, the respondents took a stance that the petitioner was found permanently disabled and unable to serve the Government. The department sought the opinion of the Medical Board and in light of the board's opinion the petitioner was found entitled only for invalid pension which was sanctioned to him in terms of Rule 35(2) of the Pension Rules of 1996. The action of the State Government in retiring the petitioner on the basis of his medical condition is defended in reference to Rule 35(1) of the Rules. It is further stated in the reply that the date of the petitioner's retirement was made effective from 5.7.2001 and for the period of absence up till that date, he was permitted to avail extra ordinary medical leave.;