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Judgment
H. Imtiyaz Hussain, J.—Petitioners were appointed as constables in the Border Security Force. They have been served with a notice for
Medical Board out. It has been found on their examination by the Medical Board that they are suffering from ailments as such are not fit to be
retained in the Border Security Force service. Board proceedings have been initiated against them which have been approved by the competent
officers. On the basis of these proceedings respondents propose to board out them from service with invalid pension as admissible under rules.
Through a notice they have been asked to show cause why the proposed action may not be taken against them. Notices further provide that in
case they fail to show any cause it would be presumed that they have got nothing to put forward and the decision as mentioned in the notice will be
final in this regard.
The petitioners are aggrieved of the proposed action of the respondents and have prayed for quashment of the said show cause notice, The
petitioners further pray that in case respondents find that the petitioners are not fit for the regular job they may be given sheltered appointment
under the provisions of the persons with Disabilities (Equal Opportunites, Protection of Rights and Full Participation) Act, 1995.
The main obstacle in granting a shelter appointment to the petitioners are the two notifications issued by the Government of India dated 10th
September, 2002 by means of which the Boarder Security Force has been alongwith other services, exempted from the said Act. In view of this
the petitioners have prayed for quashment of these notifications also.
The petitioners case in brief with regard to these notifications is that since a benefit of shelter appointment is available to the army officials, the
officials working in the BSF have been discriminated against by excluding the force from the benefit of the Act.
The respondents have in their reply stated that the respondents propose to board out the petitioners on the basis of the medical reports which
show that the petitioners are not physically fit for the service. It is stated that proper show cause notice has been issued to the petitioners to show
cause and any final decision in this behalf would be taken on consideration of the reply received from the petitioners. So far application of the Act
to the BSF is concerned it is stated that the BSF has been exempted from the purview of Sections 33 and 47 of the Disability Act 1995 and in this
regard there is no violation of Articles 14 & 16 of the Constitution.
Heard. I have considered the matter.
Learned Counsels for the petitioners have referred to the provisions of Disability Act of 1995 and would submit that the Act provides provisions
for sheltered appointments of the employees who are suffering from any disability falling within the definition of the Act as such it would be violation
of right to equality if the protection of the same is not extended to the petitioners though a similar protection is available to the Army officials. The
learned Counsels have in this behalf referred to Narendra Kumar Chandla Vs. State of Haryana and others, , Kunal Singh v. Union of India and
Anr. 2003(2) SC 102, L/NK Vinod Kumar v. Union of India and Ors. Mil LJ 2004 MP 60, Mohd. Yasin Ansari v. Union of India Mil LJ 2006
All 9, Union of India v. Mohd. Yasin Ansari Mil LJ 2006 ALL 177 and SWP No. 1139/05 Pishora Singh v. Union of India decided on 5.2.2009.
The arguments of the learned Counsel is, however, cannot be accepted in view of the notifications dated 10.9.2002. It is due to this fact that a
challenge has been thrown also to the validity of such notifications.
Mr. W. S. Nargal learned Counsel for the respondents has stated that the BSF has specifically been exempted from the provisions of the
Disability Act vide the said notifications and the issue stands already settled by this Court. The issues raised by the petitioners have been earlier
considered by this Court in Parshotam Dass v. Union of India in SWP No. 804/04 and other writ petitions decided on 9.6.2006, SWP No.
1664/04 Brijanand v. Union of India decided on 30.11.2004 and SWP No. 291/06 Mirza Muzahid Hussain v. Union of India decided on
10.3.2006.
In Purshotam Dass's case the Court has gone to the issue which arises in the present cases and while rejecting a similar contention raised in the
said case the Court observed as under:
One of the objects for enacting the Act is to remove any discrimination against the persons with disabilities in sharing of development benefits vis-
a-vis non-disabled persons. With that object in view the legislature has made provision for reservation of posts and for granting shelter appointment
to the disabled, in Section 33 and 47 of the Act.
However, an exception to the benefit to be granted to the disabled has been carved out in te provisions appended to these sections whereby te
appropriate Government has been empowered to exempt any establishment from the purview of these sections where having regard to the type of
work carried on by such establishment it considers that the benefit should not be given. The object of incorporating such provisions appears to be
that working and efficiency of such establishment is not impaired by giving shelter appointments to disabled. In the present case the establishment in
issue is Border Security Force established under Boarder Security Force Act 1968. The preamble of the Act describes the object as ""An act to
provide for the constitution and regulation of an armed force of the Union for ensuring the security of the Borders of India and matters connected
therewith."" With that object in view it cannot be said to be irrational that no disabled person is kept on the cadres of the force. The benefit
envisaged for thedisabled under the Act is in the nature of a concession. It cannot be meant to be applied in all cases in every establishment
irrespective of the nature of work carried on because if it is applied niversally then quite possibly it may affect the working of a particular
department which would not be in the national interest. No straight Jacket formula can be laid down for identifying the nature of work carried on
by any particular establishment for the purposes of grnting exemption. It would vary from establishment to establishment. Therefore, leaving the
matter to the discretion of the Government by the statute it cannot be said to be conferring of arbitrary power upon the government. The petitioners
canot lawfully conted that the said provisions provide for discrimination between disabled of the establishment with other establishments. The
Guarantee of equality enshrined in Article 14 of the Constitution is subject to the reasonable classification and classification of the establishments
for the purposes of granting exemption by having regard to the nature of the work carried does not offend the right of equality.
I have gone through the said judgment and I fully agree with the reasons recorded by the learned Judge to arrive at the conclusions reproduced
above.
In these circumstances I could not find any force in the present petitions.
During arguments it was stated by the learned Counsel for the respondents that the respondents have issued only a show cause notice and the
petitioners have not so far responded to these notices by filing their objections. In view of this fact the respondents, contend that the writ petitions
are pre-mature. Learned Counsels have stated that as so far no final orders have been issued in the matter, in case the petitioners find that there is
a valid ground not to proceed in the matter on the lines as proposed by the respondents in the show cause notice, they can file their objections and
a decision in the matter would be taken only on due consideration of the objections.
In these circumstances I find the respondents have not so far taken any final decision in the matter. They have provided an opportunity to the
petitioners to show cause. In view of the pendency of the present petitions it is just and proper to permit the petitioners to file their objections
within one month from today. Let the objections be filed to the notices and the respondents take appropriate decision in the matter on
consideration of such reply.
Disposed of accordingly.