Krishan Kumar Malik And ORS v. State Of Haryana And ORS
Date of Decision: !"#$"%&'( Krishan Kumar Malik and others Petitioners
Versus
State of Haryana and others
...Respondents
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Present: Mr.Ram Niwas Sharma, Advocate for the petitioners.
Ms.Gaganpreet Kaur, AAG, Haryana.
Mr.Amar Vivek, Advocate for respondent HSAMB.
,, ' The petitioners are 100% disabled being diagnozed with bilate blindness i.e. blind by both eyes corneal opacity with iris coloboma with nystagmus. They were appointed under disability quota in the respondent - Haryana State Agricultural Marketing Board and the dates of their initial appointment and promotion as Secretary cum Executive Officer are tabulated below:
Name of the petitioner Date of initial appointment Date of promotion as Secretary cum Executive Officer Krishan Kumar Malik 14.3.2008 as Assistant Secretary 31.10.2013 Rajbir Singh 17.3.2008 as Assistant Secretary 31.10.2013
Smt.Lata 21.6.2005 as Accountant.
Promoted as Assistant Secretary on 22.8.2007 26.3.2013 The services of the petitioners are governed by The Haryana State Agricultural Marketing Board Service Rules, 1974 (hereinafter referred as `the Rules of 1974') and they were promoted as Secretary cum Executive Officer under the said Rules. The petitioners were posted at the places of their convenience after taking their consent as the State Government had taken decision that as far as possible, the handicapped and blind employees be shown due consideration while considering the question of their posting and transfers.
The grievance of the petitioners is that despite their holding the post of Secretary cum Executive Officer, they are not being allowed or assigned the duties attached to the post, rather they are forced to work under the officials of equal status and even those who are their juniors. It is stated that the same is being done by the respondent - Board under the presumption that the petitioners are unable to discharge the duties of the post held by them. Such action not only humiliates them, but also reinforces the feeling of disability. Specifically impugned is the order dated 24.12.2014 (Annexure P 9) whereby respondents Nos. 4, 5 and 6 who are DMEOs/ Secretary cum Executive Officers have been transferred and posted at the stations where
the petitioners are working as Secretary cum Executive Officers. Referring to the Persons with Disabilities (Equal) Opportunities, Protection of Rights and Full Participation) Act, 1995, it is stated that the action of the respondent Board is in violation of the said Act.
In the Written statement filed on behalf of respondent No.2 and 3, it has been stated that under Punjab Agricultural Produce Markets (General) Rules, 1962 the Secretary of a Market Committee has multifarious and diverse duties. Consequently it is imperative that the persons so deputed are able to discharge the duties in an effective and efficient manner. It has been asserted that the transfer orders of the private respondents to the posts of Secretaries have been made only to ensure the smooth functioning of the duties of Secretaries in the Committees. It has been asserted that by posting of the private respondents as additional hands, neither any loss nor any prejudice has been caused to the petitioners. Inspite of the posting of the private respondents, the petitioners continue to enjoy all service benefits which appertain to their respective posts and there is no demotion or denial of any legal right of the petitioners.
I have heard Ld. Counsel for the parties.
A similar question arose before this Court in CWP No. 9773 of 2009 Amrit Pal Singh and another Vs. State of
Haryana , where the petitioners (both blind) were promoted as Principals along with other lecturers vide order dated 30.12.2008. Thereafter while they were working as Principals the State Government vide memo dated 2.6.2009 ordered conversion of 8 posts of physically handicapped Lecturers (Blind) into Principal, Academic. These posts included the posts which were held by the petitioners therein as Lecturers. Consequently the petitioners therein, were posted against the converted posts, which action was challenged. The action was sought to be jusitifed by the State by stating that neither the status nor the emoluments of the petitioners therein was reduced.
It was also contended that the Principal of a college has to carry out diverse duties, they have to perform administrative duties and manage day to day functions of the college, besides handling financial matters. After giving full details of the duties of Principal, it was stated that it would be difficult for the petitioners to perform those duties. This Court disagreed. It was held that once a post of a Principal has been reserved for the blind, then it is not open to take the plea of inablity of the blind persons to perform their duties. If, in the wisdom of the Government such a blind person is unable to perform the duties then it was essential to issue a statutory notification u/s 33 of the Act. That having not been done the defence of unsuitablity could not be countenanced.
It was observed :
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&< The ratio of the aforesaid case is fully attracted in the facts of this case. The petitioners having been appointed as Secretary cum Executive Officers, and there being no notification u/s 33 of the 1995 Act exempting the posts held by them from the operation of the Act, the action of the respondents in not entrusting the full responsibilities of their job and posting other Secretaries to perform the same duties, which are sought to be justified as being by way of assistance or help, cannot be sustained as being legal.
Accordingly, the writ petition is allowed. The order Annexure P 9 to the extent of transfer of respondents 4 to 6 to the stations where the petitioners are working as Secretary cum Executive Officers are quashed.
It is directed that so long as the petitioners remain
posted as Secretary cum Executive Officers, they will continue to discharge all the functions, duties and responsibilities of that office, independently, in the same manner as is discharged by the Secretaries cum Executive Officers, who do not suffer from any disability.
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