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Judgment
Sandeep Mehta, J.—Heard learned counsel for the parties.
By way of the instant writ petitions, the petitioners, who are both helpers in the respondent company - Jodhpur Vidhyut Vitran Nigam Ltd., have approached this Court with a prayer for affording appointment to their sons/male dependents as helpers in the J.V.V.N.L. on compassionate basis. Both the petitioners herein suffered serious debilitating injuries by electrical burns while discharging their duties as helpers in the respondent J.V.V.N.L.
The petitioner Gopa Ram ultimately had to be subjected to amputation of right upper limb whereas all fingers, thumb and wrist of left upper limb were inflicted with Ankylosis {Ankylosis or anchylosis (bent, crooked) is a stiffness of a joint due to abnormal adhesion and rigidity of the bones of the joint, which may be the result of injury or disease. The rigidity may be complete or partial and may be due to inflammation of the tendinous or muscular structures outside the joint or of the tissues of the joint itself.} The Medical Board formed to examine the extent of disability of the petitioner Gopa Ram certified that he was suffering from 80.02% permanent disability in relation to the whole body.
The petitioner Bheru Das also suffered an electric accident and resultantly both his hands had to be amputated from elbow downwards. The Medical Board formed to examine the extent of disability of the petitioner Bheru Das certified that he was suffering from 80% of disability in relation to the whole body.
The petitioners herein submitted applications to the respondent company for granting appointment to their sons as helpers in the respondent company on the strength of a circular dated 11.9.2001 issued by the company which is quoted herein below for the sake of ready reference:--
"JODHPUR VIDHYUT VITARAN NIGAM LIMITED
No. JVVNL/CandMD/S.CS/JU/F/OO-124/D.498/Dt. 11/9/2001
Sub:- Appointment on preferential basis.
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The Board considered the proposal as contained in the Agenda Note and resolved :
To adopt Rajasthan Compassionate Appointment of Dependents of Deceased Government Servants Rules, 1996 vide notifications dated 31.12.1996, order dated 19.04.1999 and orders to be issued in future in this regard. Besides the following conditions will regulate appointment of dependent of deceased/permanently disabled employee.
a) The Company may take decision, from time to time regulating fresh appointment in any category or categories of post. This would automatically apply to appointment of dependent of deceased/permanently disabled employee.
b) In the case of appointment of widows of the deceased employee or female dependent of permanently disabled employee, the general decision of abolishing posts of Class-IV, LDCs etc. automatically on its falling vacant may be relaxed. They may be appointed against this post if they fulfill other requirements.
c) The Office Order No. 823 dated 23.8.95 and 1462 dated 17.10.96 will be followed for giving appointment to male dependent of the deceased/permanently disabled employee on the post of Helper. Appointment to Male/female dependent of the deceased/permanently disabled taken in this regard.
d) Widows of the deceased or female dependent of the permanently disabled employee would not be considered for appointment as Helper in view of the special nature of the job.
Also resolved to make amendment in order No. 2055 dated 11.10.1990, regarding annuity benefit to the extent that annuity benefit will not be allowed in cases where widow/Dependent is eligible for appointment. In rest of the cases where widow/dependent is not eligible for appointment, annuity may be allowed, subject to the following conditions that such benefit shall be admissible:--
i) till the remarriage of widow.
ii) till the Son/Daughter of the deceased attains the age of 16 years.
iii) till death of widow/date of superannuation age of deceased whichever is earlier.
By Order Sd/- (R.K. SINGH) COMPANY SECRETARY JODHPUR DISCOM, JODHPUR"
The applications thus submitted by the petitioners were forwarded by the Assistant Engineer concerned to the Executive Engineer. However, the applications were not responded to, upon which the petitioners have approached this Court by way of the instant writ petitions.
It is claimed in the writ petitions that kin of other similarly situated permanently disabled employees viz., Ganpat S/o. Urja Ram and Bhakar Ram S/o. Mangi Lal were given compassionate appointment by the respondent company on the basis of the aforesaid circular in identical circumstances.
This Court is constrained to observe that the cases before the Court are of highly sensitive nature where human beings with extreme sufferings have approached this Court for redressal of their grievances and yet, no reply was filed to the writ petitions on behalf of the respondent company for period in excess of 5 years. The Court accordingly directed Sarva Shri Ravi Bhansali, C.S. Kotwani and Kuldeep Mathur, panel advocates, to appear on behalf of the respondent company to plead the cases.
Today, learned counsel representing the respondent company submit that the circular dated 11.9.2001 issued by the respondent company holds field till date. However, it is submitted that subsequent to the issuance of the above circular, a direction was received from the State Government not to act upon the said circular. Owing to the said direction of the State Government, the petitioners were not extended the relief claimed in the writ petitions.
Having heard and considered the arguments advanced at the Bar and after going through the documents available on the record, this Court is of the opinion that reluctance shown on behalf of the respondent company in following its own circular dated 11.9.2001 and failing to afford appointments to the sons of the petitioners as Helpers on compassionate basis, is totally unjustified. The circular dated 11.9.2001 was issued pursuant to a conscious decision taken by the Board of Directors to adopt Rajasthan Compassionate Appointment of Dependents of Deceased Government Servants Rules, 1996. The circular clearly provides that the office order No. 823 dated 23.8.95 and 1462 dated 17.10.96 will be followed for giving appointment to male dependent of the deceased/permanently disabled employee on the post of Helper. It being an undisputed situation that both the petitioners received permanent disability in electrical accidents while discharging duties as helpers in the respondent company, they are entitled to the benefits bestowed by the aforesaid circular.
The specific case as set out in the writ petitions that kin of two other similarly situated permanently disabled employees viz., Ganpat S/o. Urja Ram and Bhakar Ram S/o. Mangi Lal were given compassionate appointments by the respondent company on the basis of the aforesaid circular, is not disputed.
The learned counsel for the company attempted to persuade this Court that the petitioners are not entitled to the relief claimed in the writ petitions as the company has retained the petitioners in job and they are being extended all service benefits even though they are of no utility whatsoever to the company looking to their permanent disability. Section 47 of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 is a complete answer to the said assertion and it reads as below:--
"47. (1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service:
Provided 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:
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. (2) No promotion shall be denied to a person merely on the ground of his disability:
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, as may be specified in such notification, exempt any establishment from the provisions of this section." Thus, the petitioners upon having been permanently disabled while performing their duties for the respondent company are governed by and are entitled to all the benefits of the aforesaid provision. The company while extending them the full service benefits is acting under a mandate of law.
In view of the above factual scenario, the inaction of the respondent company in offering appointment to the male dependents of the petitioners on the post of helper pursuant to the permanent disability received by the petitioners while discharging their duties in the respondent company, is totally unjustified and arbitrary.
As a consequence of the above discussion, the instant writ petitions deserve to be and are hereby allowed. The respondent company is directed to offer appointments to the male dependents of the petitioners on the post of helper on compassionate basis. As has been noticed above, the decision of the instant writ petitions has been delayed unreasonably on account of failure of the respondent company in responding to the notices served upon it. Thus, the appointments as directed above shall be bestowed upon the petitioners'' male dependents even if they have crossed the upper age limit for appointment by giving them the requisite age relaxation.
It is also made clear that the petitioners shall be continued in service on the strength of the provisions of Section 47 of the Act of 1995, irrespective of the fact that their dependents have been given compassionate appointments.
No order as to cost.