High Court of Punjab and HaryanaCWP/28831/2017disposed of

Kulbir Jakhar v. State Of Haryana And ORS

2021-02-16Mr. Justice Amol Rattan Singh11 pages

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

Date of Decision: 16.02.2021 Kulbir Jakhar

...Petitioner

Versus

State of Haryana and others

...Respondents

CORAM: HON'BLE MR. JUSTICE AMOL RATTAN SINGH Present:- Mr. H.C. Arora, Advocate, for the petitioner. Ms. Shruti Jain, DAG, Haryana.

***** AMOL RATTAN SINGH, J. (Oral)

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# != Thereafter, on 21.01.2021, the following order had been passed:- ;

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# != Pursuant to the above order dated 21.01.2021, an affidavit of Sh. Alok Nigam, Addl. Chief Secretary to the Government of Haryana, Department of Public Works (B&R), dated 09.02.2021, has been filed, stating therein that a supernumary post of Executive Engineer (Civil) has been created for the petitioner since 21.04.2015, which would continue to exist till either his retirement from service (obviously as per his normal date of superannuation in terms of the Haryana Civil Service Rules, 2016) or till his joining duty after his medical fitness, whichever is earlier. The response of the learned Addl. Chief Secretary is to be highly appreciated even though it has come at a rather late stage. Mr. Arora however submits that the post having rightly been created since 21.04.2015, i.e. the date from which the petitioner had to remain absent on account of his illness, a direction may be issued to release his salary to him from that period, till date; and thereafter obviously with that salary to be continued to be paid.

. In view of the fact that the petitioner, admittedly, as per the learned Board of Doctors, is absolutely unable to perform any work at all, therefore in terms of Section , !5 ! * !6 7+$#""!$ !(! 5 !8$##!

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"$ #*@. Section 47 in The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 "47. Non-discrimination in Government employments.-

(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."

Section 3 in the Rights of Person with Disabilities Act, 2016 "3. Equality and non-discrimination.-

(1) The appropriate Government shall ensure that the persons with disabilities enjoy the right to equality, life with dignity and respect for his or her integrity equally with others.

(2) The appropriate Government shall take steps to utilise the capacity of persons with disabilities by providing appropriate environment.

(3) No person with disability shall be discriminated on the ground

.0. of disability, unless it is shown that the impugned act or omission is a proportionate means of achieving a legitimate aim.

(4) No person shall be deprived of his or her personal liberty only on the ground of disability.

(5) The appropriate Government shall take necessary steps to ensure reasonable accommodation for persons with disabilities." --- --- --- "34. Reservation.-

(1) Every appropriate Government shall appoint in every Government establishment, not less than four per cent. of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities of which, one per cent. each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and one per cent. for persons with benchmark disabilities under clauses (d) and (e), namely:- (a) blindness and low vision;

(b) deaf and hard of hearing;

(c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy; (d) autism, intellectual disability, specific learning disability and mental illness;

(e) multiple disabilities from amongst persons under clauses (a) to (d) including deaf-blindness in the posts identified for each disabilities: Provided that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time:

Provided further that the appropriate Government, in consultation with the Chief Commissioner or the State Commissioner, as the case may be, may, having regard to the type of work carried out in any Government establishment, by notification and subject to such conditions, if any, as may be specified in such notifications exempt any Government establishment from the provisions of this section.

(2) Where in any recruitment year any vacancy cannot be filled up due to non-availability of a suitable person with benchmark disability or for any other sufficient reasons, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, it may first

. be filled by interchange among the five categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability:

Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the five categories with the prior approval of the appropriate Government.

(3) The appropriate Government may, by notification, provide for such relaxation of upper age limit for employment of persons with benchmark disability, as it thinks fit."

Thus, with the petitioner having been unfortunately disabled since about April, 2015, first Section 47 of the Act of 1995 would have become applicable to him and thereafter with the Act of 2016 having come into effect from 27.12.2016, the provisions of that Act would be applicable, with obviously, in the opinion of this court at least, the rights that had already accrued to him under the old Act, not to be taken away from him. Be that as it may, with Section 34 of the Act of 2016 directing even reservation of posts for persons with a benchmark disability, including locomotor disability, whether such locomotor disability was caused due to a heart disease or any other disease, would be irrelevant. In any case, with the Government itself having graciously (even though late), granted him the relief that the petitioner has sought, no further comment is required to be made by this court, in the present petition. +$!#( ! "!

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!##* ! !1 16.02.2021 (AMOL RATTAN SINGH) vcgarg JUDGE