Bachan Kaur v. Uttar Haryana Bijli Vitran Nigam Limited And Others
!
"
#$
%& '(
)
!"!#$ + ,-+
*
./0
+!
./0
+ 1
0, $./0
%
& 2
0$3
4
$
/
$
5
certiorari
& '* &
7 8/
:* 4"
%7.3
4". 50 $ ;
'$" $ 4"
3
33 ',
". <
( $".
#
0
% 3 =
'*$"
%0 '4
.<<!
<>< # /(+ < <><
$".
'*
&
$'4 9&
$ 2
"3 4 < ?@ *
".
'*$"'
'
3 ' <7.3
&
&'
" * 2
. *
* " 7 <2
'0
$ '&50 $
$
$$7 <<
'$"* .33
0
%>
< 4"
%7 !3
3
34" 3 * *
%7.0 '* &
7 8/
:
7 (
$
%7
&
* 4" *
2
Amandeep Padda Vs. State of Punjab2014 (4) SCT 638
& $$" $
'*
" &
$ **$ 4 3
3 4"
3
' / .
%7 $$ $$"
0
* 4" *
;
<>< 3
&&
/(+
$ *
3 '
3
<
4
2
'
15+A). &
$ . &
$'4 9&
$ 3
'*
/*
'
$
+ $
.0$!*
$./'4 . $
< ?
'*
!
4'
7< 4
'*$"'
'
<7
*
".3
&
&' "=* 2
'0
3 &
50 $
3 ' <7 $$
7 <
'$"* 0
< 8/
:4"
%7. *
@
.
4
&
0 '0
*
2
) 3 ) 0$-
0 ) $558
B-)C:2
$"
0& '$"*
$
0
*
!3
.
%7
$
8/ 9
:. & $ * ' ( $) '4
.!
"
3
$
&
0
"* '
3
3$
.
4$ ' /
2 ( ) '4
0 $
7 8/
7: 0
0
$*
50 $ ;
'$" '
"4 3
3.
0& 3
*
5 *
*
.
%7
''
3
$;
'$" 3
&0& "3
0
7 8/
:2
. >8/
:.
$ $4
*
0
%7
;
'$"
$$ $
*
5*
.
%7
3
*
7 8/
: 3
4
0 .0$
*$
$# 5 .3
=&
*$"8/
>:.
%73
3
'$"* 0 '* &
7 8/
:3 ',
". < +
0
$$
% '* &
7 8/
: $$* &
) %7 '
) -)
3 '
' . $0 "
".4
*
") -)$
$"
'*$"
4
*
$$"
4 '*$"
. 3 $ $$ 4 * 2
'4& "3
-)) 2
*
$".
< ? .
$$*
'*$"'
$4
& $0&3 Per contra. $
$
*
4'
$
4
$
/** $$
$
$$ & 4"
;
) -) $"4 $ '*$"
4
#
"
3$
'& $
!3
'
$
&&
4
#
3$
" 5 4 "
$
3
"
4
".
$$ *
'
".$
$
*
$
0
3 $ *
$$
%7
0
4"*
*
> !
0&
$
$
&
3
.
") -)3
2
4 $3 "Rule 2.5 No pension may be granted to a Government employee dismissed or removed for misconduct, insolvency or inefficiency;
+ but to Government employee so dismissed or removed compassionate allowances may be granted when they are deserving of special consideration; provided that the allowance granted to any Government employee shall not exceed two third of the pension which would have been admissible to him if he had retired on medical certificate.'
Rule 5.12 In the case of partial incapacity (vide alternative certificate in Rule 5.26), a Government employee should, if possible, be employed even on lower pay so that the expense of pensioning him may be avoided. If there be no means of employing him even on lower pay, then he may be admitted to pension, but it should be considered whether, in view of his capacity for partially earning a living, it is necessary to grant to him the full pension, admissible under rule." /'
$".
< ?5
*
" $"4
3 $ * "* 3
*
0
. #
3
4" ' 3$ *
'& $
" 2
> 8/
):
=*$
'
$
4" 15+A). &
. 0 '
' %A 87: 15
< .3
4
& $$"
'
BA$
4
C2 $ '
"no any other detail viz. the cause/place of electric burn has been given in the report."
< @
.
&
0
3 =& < .3
!3
$
> 8/
):
$
"3
& $
- 4 "
<<>5
3
*$
* 0
#
3$
"2 4
" #
& '
4
""
$4
$.
4$".
. '
$". *
.*
4 & '
$" $ $$
2
9*
*
* $$"*
.3$
9*
* $$
0
9$ 0 "50 3
$
$$ *$ "
$" #
"
;
$$.
' '
0
B ".C
')
-)In arguendo,
"
.)
-) $
'*
$$3 '
"4 &
+
0
.) -)* $$"
'*$"'
'*$"
. '
&
/ $$".- >
3 8A6
@**
.
)& ;
$$
*
: / . << 8
B/ <<C: $ 4 '
'*$"
3 6
"
&
0 3$ - >$
0 / $$4 "*
9 &
2 * 0
4 $3 "47. Non.discrimination in Government Employment .
(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.
72. Act to be in addition to and not in derogation of any other law.
The provisions of this Act, or the rules made thereunder shall be in addition to, and not in derogation of any other law for the time being in force or any rules, order or any instructions issued there under, enacted or issued for the benefit of persons with disabilities."
A0
$ 40 * 03 $'
= $"$
$ 3 9*$ $"* 4 *
5
"
.3 " *
* 0 $" 9*
$"$$ $4
$
4$"
;
0 / <* $$ $ 3
'
$"
''
"
"/
4 *$ # &'
3, &
!C4$ -
Kunal Singh vs. Union of India (2003) 4 SCC 524, 3
.*
=& &, -0
#
$. $$3&3 4
"8.
...It must be remembered that a person does not acquire or suffer disability by choice. An employee, who acquires disability during his service, is sought to be protected under Section of the Act specifically. Such employee, acquiring disability, if not protected, would not only suffer himself, but possibly all those who depend on him
- would also suffer. The very frame and contents of Section clearly indicate its mandatory nature. The very opening part of Section reads "no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service". The Section further provides that if an employee after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits; if it is not possible to adjust the employee against any post he will be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. Added to this no promotion shall be denied to a person merely on the ground of his disability as is evident from sub4 section (2) of Section 47.
Section 47 contains a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing a provision of social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of Section is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service."
0
. 3 , & 4 !C4$ -
Bhagwan Dass vs. Punjab State Electricity Board (2008) 1 SCC 242, *
=&
&, /
4/$ '.
4"'
=& $$3& 4
"12. Appellant No. 1 was a Class IV employee, a Lineman. He completely lost his vision. He was not aware of any protection that the law afforded him and apparently believed that the blindness would cause him to lose his job, the source of livelihood of his family. The enormous mental pressure under which he would have been at that time is not difficult to imagine. In those circumstances it was the duty of the superior officers to explain to him the correct legal position and to tell him about his legal rights. Instead of doing that they threw him out of service by picking up a sentence from his letter, completely out of context. The action of the concerned officers of the Board, to our mind, was deprecatable.
13. We understand that the concerned officers were acting in what they believed to be the best interests of the Board. Still under the old mind4set 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 too 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 largess but their right as equal citizens of the country."8 '* :
+
0
3, & !C4$ -
The State of Kerala vs. Leesamma Joseph 2021 AIR SC 3076% / $
$$4 4
3
0 3
3 6
4
$".
&
0
-*
=& &, -
$. $$3&3 4
27. Now coming to the question of the respondent not being initially appointed in the quota for PwD in the feeder cadre, we note that there is no dispute about the benchmark disability of the respondent. I t would be discriminatory and violative of the mandate of the Constitution of India if the respondent is not considered for promotion in the PwD quota on this pretext. Once the respondent has been appointed, she is to be identically placed as others in the PwD cadre. The anomaly which would arise from the submission of the appellant4State is apparent 4 a person who came in through normal recruitment process but suffers disability after joining service would on a pari materia position be also not entitled to be considered to a vacancy in a promotional post reserved for a PwD.
This is the consequence if the entry point is treated as determinative of the entitlement to avail of the benefits. Source of recruitment ought not to make any difference but what is material is that the employee is a PwD at the time for consideration for promotion. The 1995 Act does not make a distinction between a person who may have entered service on account of disability and a person who may have acquired disability after having entered the service. Similarly, the same position would be with the person who may have entered service on a claim of a compassionate appointment. The mode of entry in service cannot be a ground to make out a case of discriminatory promotion." '* : 7 / .
0
= 4"
$" **$ ) 4
$ *$ "A6 "
'
*$ "3 '
"$ 3$
'
/ '
.
3
"$ 3$
* '4&
&
. & * & 4 $$
$"&* *$ ".
$$3 # *
'
'
$ &
'
# ( $". @
3*
0 $" * *
%7 &
50 $ 3
3 $$ '$"* .
5$
$4
0& '$"
$";
4 =3
@
$"
*"& *
%7
0 3
0 5
%7
7 8/
7: ''
3
$*
"4 3
& 3
&
( $) '4
* $$" 0 5 $"
%7
3
.
3
4 '*$
'
$ "
$ 3
'*
" *
0 3 $ 3 ** 3 $'
*$ " ;
0" $ R.T. Rangachari vs.
Secretary of State AIR 1937 PC 27.
& $$"$ 3
3
$"'*
&0
'
$ $"
0
$ .
4
*
0 *
.
*
'
0
$$"
;
$"
0 3
$"*
&
0 * 3
#
0$
) .
0
4"
-
'
$&
$.3' $'
.
$"' 0
4"*
# 2 .
4
0 3
C
'*
'4$ $ 3 0
"
0) $
$4 *$ # &'
4"
Amit Kumar Chakraborty vs. Haryana Power Generation Corporation Ltd. and others CWP No.2262 of 2018 decided on 01.02.2024. 5
.$
$".
%7 3 $$
9
*3
4"
&3
$*
"4
0 '* &
7 8/
: It is trite law that existence of an alternative remedy does not foreclose writ jurisdiction under Article 226 of the Constitution of India. Therefore, the argument of with respect to availability of an alternative remedy ought to be dismissed in view of the judgments rendered by the Hon'ble Supreme Court in Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai (1998) 8 SCC 1 and Harbanslal Sahnia and another vs. Indian Oil Corporation Ltd. and others (2003) 2 SCC 107, wherein it has reiterated that the exercise of writ jurisdiction is a matter of discretion. Therefore, if the facts of the matter warrant it, the High Courts may invoke the same in spite of availability of a parallel remedy. Since '* &
* 4"
'
) -).
4"0$
&
*
0= 3 #
> 5 0 3 40 . *
3 *
$$3
7 8/
:
4"
2
$
&
"4
$ & '$"*
2
$$ $
& '* &
>?*
'A.J. Randhawa Supg. Engineer (Retd.) vs. State of Punjab 1998 (1) SCT 3432
$$4 '*
'
<
* "'
( $".
$ $$4 4"
3 *
& 3
= '
*
*"
& ' $$ **$
8:. ". $$ $
* &
'
- +
*
=&D
D%
*
D%