RAKESH KUMAR GIRI Vs. UNION OF INDIA

JUDGEMENT

(1.) In this Writ Petition under Article 226 of the Constitution of India, the petitioner seeks a writ of mandamus for setting aside the notification dated 10.9.2002 whereby the respondent/Union of India has exempted the application of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short "the Act") to the Border Security Force. He also seeks quashing of the order dated 11.7.2014, 1.8.2014 issued by the respondents and a further direction that he be kept in service till the age of superannuation. The petitioner's case is that he joined the BSF on 9.3.1990 as Sub Inspector and was later promoted to the rank of Inspector on 24.8.1998. During the course of his service he received various commendations till the year 2004. However on 18.12.2004, he met with a serious accident resulting in a neck injury, which rendered him a Quadriplegic, i.e. loss of sensation in all four limbs. He was declared 100 per cent disabled. Now he moves around on wheelchair with some effort, but is mentally alert and suitably employable; that on 25.2.2008 the respondents permitted his retention into service till completion of 20 years of service with the option of his proceeding on voluntary retirement after completion of the said period. By the opinion of the Medical Board dated 3.2.2014, he was considered not fit for further service and an order in this regard was communicated to the petitioner. He contends that he represented to the Government to be retained in service on various grounds including: his physical, mental and spiritual conditions, all being such that he could still work in the BSF with limited duties. He also apprehended to be beset with severe difficulties in case of retirement on the ground of medical unfitness. However, vide order dated 11.7.2014, his representation was rejected. His subsequent representation to the Court of Chief Commissioner for Persons with Disabilities resulted in notice being issued to respondent No.3 on 25.7.2014.

(2.) It is noticed that the petitioner was required to appear before the Review Medical Board at BSF Hospital, RK Puram, New Delhi on 25.7.2014 and yet again on 31.7.2014 between 1000 hours and 1600 hours. It is an admitted position that the petitioner defaulted in appearance on both occasions. The petitioner's case is that he would be entitled to continue in service in terms of sub-section (1) of Section 47 of the Act and that his service could not be dispensed with on account of his disability; that since he is disabled and not suitable for the post he was holding he could be shifted to some other post with same pay scale and service benefits.

(3.) He states that inasmuch as the respondent/Union of India has exempted the application of Section 47 of the Act to the Border Security Force he has suffered irremediably and is not being treated at par with other disabled persons employed in the State/Union of India. Hence, he argues, the action is arbitrary and falls afoul of Article 14 of the Constitution of India. He submits that in the first instance the Government lacks the power to issue the impugned notification exempting the application of Section 47 of the Act. He relies upon a Division Bench judgement of the Allahabad High Court in Dileep Kumar Singh Vs. Union of India & Ors., 2014 4 ADJ 97 which held that "legislature itself has contemplated that Notification of exception has to be issued with reference to the Proviso to sub-section (2) of Section 47 only. Therefore, Notification for exemption of the establishment has to be dealt with regard to what is covered by subsection (2) of Section 47 and not the entire Section 47."