S. Anthony and another vs Union of India and others

P.K. Misra, J.—Heard the learned counsel for the parties.

The question relates to extension of benefits available u/s 47 of the Persons with Disabilities (Equal Opportunities,. Protection of Rights and Full

Participation) Act, 1995 (hereinafter referred to as the Act).

The present Petitioner was employed in the Railway Protection Force. On account of his visual disability he was declared medically unfit to

continue in the B1 Category in the RPF and found suitable only for Cl Category. Subsequently, the following order, dated 17 July, 1996 was

passed:

Sri V. Subbarayulu Constable/RPF, Plaintiff No. 684385 on pay Rs. 1020 in scale Rs. 825-1200 declared medically unfit in ''BOI'' category, but

recommended fit for an alternative job in ''C-I'' category and below, is discharged from RPF Services with effect from 18 June, 1996. He has

been absorbed as Mali vide SPO/R&T o.o. No. PB/S1/ 356/1185, dated 21, 22 June, 1996 against existing vacancy with effect from 19 June,

1996.

The petitioner after joining the said post, which was apparently three categories below the post held by him, made a representation, claiming

benefits u/s 47 of the said Act. Since, the said representation was not considered the petitioner filed OA. No. 420/ 2004 before the fourth

Respondent Tribunal. The Tribunal by referring to the fact that the disability had been incurred prior to coming into the force of the said Act,

rejected the contention. The Tribunal also placed reliance upon the provisions contained in Paras. 1301 to 1315 of the IRBM Rules issued by the

Railways. Such order of the Tribunal has been challenged by the petitioner in these writ petitions.

The learned counsel for the petitioners has contended that a similar question was raised before the Supreme Court in the case of Bhagwan Dass

and Another Vs. Punjab State Electricity Board, , wherein, the Supreme Court, notwithstanding the fact that the disability had occurred prior to the

introduction of the Act, observed as follows, in Paras. 6 and 19, at pages 4 and 6:

In view of section 47 of the Act and the circulars issued by the State Government and the Board it is clear that notwithstanding the disability

acquired by the appellant the Board was legally bound to continue him in service. But on behalf of the respondent it is stated that the disabled

employee himself wanted to retire from service and, therefore, the provisions of section 47 had not application to his case. Here it needs to be

made clear that at no stage any plea was raised that since the appellant was declared completely blind on 17 January, 1994 he was not covered by

the provisions of the Act that came into force on 7 February, 1996. Such plea cannot be raised because on 7 February, 1996 when the Act came

into force the appellant was undeniably in service and his contract of employment with the Board was subsisting. His case was, therefore, squarely

covered by the provisions of the Act....

We understand that the officers concerned were acting in what they believed to be the best interests of the Board. Still under the old mindset it

would appear to them just not right that the Board should spend good money on someone who was no longer of any use. But, they were quite

wrong, seen from any angle. From the narrow point of view the officers were duty bound to follow the law and it was not open to them to allow

their bias to defeat the lawful rights of the disabled employee. From the larger point of view the officers failed to realise that the disabled to are

equal citizens of the country and have as much share in its resources as any other citizen. The denial of their rights would not only be unjust and

unfair to them and their families but would create larger and graver problems for the society at large. What the law permits to them is no charity or

largesse but their right as equal citizens of the country.

From the facts of the present case, it is evident that even; though the disability had actually taken place before the introduction of the said Act,

the medical decategorisation and consequential re-employment in the post took place after the act came into force. In such circumstances the ratio

of the decision of the Supreme Court would be squarely applicable to the facts of the present case. Accordingly, the order passed by the Tribunal

is required to be modified and it is hereby declared that the petitioner would be entitled to the benefits as contemplated in section 47 of the

Disability Act and accordingly, these writ petitions are allowed. No costs.