G. Vijayakumar v. State of Kerala & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 24TH SEPTEMBER 2010 / 2ND ASWINA 1932 WP(C).No. 80 of 2010(H) ----------------------- PETITIONER: --------------- G.VIJAYAKUMAR, S/O. GOPINATHAN NAIR, AGED 43 YEARS, PEON, OFFICE OF THE ADDITIONAL PRINCIPAL CONSERVATOR OFFORESTS, SOCIAL FORESTRY HEAD QUARTERS, TRIVANDRUM, RESIDING AT LEKHA NIVAS, NEAR GHS, ATTINGAL, PIN-695101. BY ADV. SRI.M.R.HARIRAJ SRI.SURAJ.S SRI.P.A.KUMARAN SMT.VINEETHA B. SRI.NIRMAL V NAIR RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT OF KERALA, DEPARTMENT OF FORESTS AND WILD LIFE, SECRETARIAT, TRIVANDRUM. 2. CHIEF CONSERVATOR OF FORESTS (ADMINISTRATION) FOREST HEAD QUARTERS, THRIVANDRUM. 3. PRINCIPAL CHIEF CONSERVATOR OF FORESTS, FORESTS HEAD QUARTERS, TRIVANDRUM. GOVERNMENT PLEADER SMT.N.SUDHA DEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX IN W.P.(C)NO.80/10** ## **PETITIONER'S EXTS:** EXT.P1: TRUE COPY OF MEDICAL CERTIFICATE DT.15.9.04 ISSUED BY THE MEDICAL BOARD. - EXT.P2: TRUE COPY OF LETTER NO.14301/04 DT.16.11.2004 ISSUED FOR THE 2[ND] RESPONDENT. - EXT.P3: TRUE COPY OF REPRESENTATION DT. NIL SUBMITTED BY THE PETITIONER. - EXT.P4: TRUE COPY OF LETTER NO.E.14301/04 DT.7.4.06 ISSUED FOR THE 2[ND] RESPONDENT. - EXT.P5: TRUE COPY OF MEDICAL CERTIFICATE DT.19.7.05 ISSUED BY THE PREDECESSOR OF DEPARTMENT OF ORTHOPEDICS, MEDICAL COLLEGE, TRIVANDRUM. - EXT.P6: TRUE COPY OF LETTER NO.E1-823/04 DT.9.5.07 ISSUED BY THE DFO, TRIVANDRUM. - EXT.P7: TRUE COPY OF REPRESENTATION DT.22.5.07 SUBMITTED BY THE PETITIONER. - EXT.P8: TRUE COPY OF LETTER NO.E1-823/04 DT.10.10.07 ISSUED BY THE DIVISIONAL FOREST OFFICER. - EXT.P9: TRUE COPY OF REPRESENTATION DT.10/07. - EXT.P10: TRUE COPY OF GO(RT)NO.04/08/FORESTS DT.3.1.08 ISSUED FOR THE FIRST RESPONDENT. - EXT.P11: TRUE COPY OF REPRESENTATION DT.18.7.08 SUBMITTED BY THE PETITIONER. - EXT.P12: TRUE COPY OF ORDER NO.E/2/2174/2008 DT.15.8.08 ISSUED FOR THE 2[ND] RESPONDENT. - EXT.P13: TRUE COPY OF APPEAL DT.20.7.08 SUBMITTED BY THE PETITIONER. - EXT.P14: TRUE COPY OF REPRESENTATION DT.31.10.08 SUBMITTED BY THE PETITIONER. - EXT.P15: TRUE COPY OF ORDER NO.E2-14301/2004 DT.12.12.08. - EXT.P16: TRUE COPY OF G.O.(RT)NO.342/09 /FORESTS DT.22.7.09. True copy ## **T.R.RAMACHANDRAN NAIR,J. ------------------------------------W.P.(C)No.80 Of 2010 H** **----------------------------------------------------DATED THIS THE 24[th] DAY OF SEPTEMBER, 2010** ## **JUDGMENT** The Writ Petition concerns the claim of the petitioner for the benefit of Section 47 of the Persons with Disabilities(Equal Opportunities, Protection of Rights and Full Participation)Act, 1995. 2. The petitioner was appointed as a driver under the respondents from 1.6.1998 as advised by the Kerala Public Service Commission. He met with an accident on 15.12.2003 wherein he suffered an injury to his right knee, which according to him disabled him from performing the work of a driver. He has sustained permanent disability of 15% and Exhibit P1 certificate issued by the Medical Board certifies the same. The Board also advised that he shall undertake only light duties. 3. The petitioner had been requesting for a category change and for accommodation in a suitable post. The application is produced as Exhibit P3 which was recommended as per Exhibit P4 for accommodation as Lower Division Clerk. Again he was asked to produce another medical certificate W.P.(C)No.80/10 -2- showing that he is not suitable to the post of driver, which certificate has been obtained and produced before the authorities (Exhibit P5). Ultimately, after examination by the Medical Board, the 1[st] respondent recommended the case of the petitioner for category change as LDC. But, it appears that the Public Service Commission opposed it and therefore, the petitioner was asked to express his willingness to be appointed as a Last Grade Servant, as per Exhibit P6. Accordingly, he had accepted it, as he could not function as a driver. Subsequent proceedings ensued and ultimately by Exhibit P10 he was appointed as a Peon. The proceedings show that he was not granted protection of pay and that he will obtain seniority only from the date of joining the new service. 4. Thereafter, the petitioner submitted Exhibit P11 representation to the Chief Conservator of Forests claiming the benefit of Section 47 of the Central Act. It is pointed out that the petitioner was given a copy of the reply as per Exhibit P12, stating that the representation need not be considered. It was appealed against by Exhibit P13 before the Government. But, finally that was forwarded to the Government and the W.P.(C)No.80/10 -3- Government by Exhibit P16 took the view that he will be given pay protection under Rule 37(B) of Chapter I KSR. The category change sought for by the petitioner as LDC has not been granted, which has led to the filing of this Writ Petition. 5. The learned counsel for the petitioner submitted that in the light of the Scheme of the Central Act, viz. Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation)Act, 1995, the petitioner cannot be reduced in rank. The benefits of the said provision cannot be denied to the petitioner in the light of the mandatory terms under which the provision, namely Section 47, has been couched. If that be so, the petitioner will have to be accommodated in a suitable post with the same scale of pay and other benefits. 6. Section 47 of the Act reads as follows: ## “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 W.P.(C)No.80/10 -4- 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.” 7. The respondents have taken up a contention that the disability of the petitioner is not 40% and therefore the considerations that may weigh with the authorities concerned will be different. The learned counsel for the petitioner submitted that in the light of the declaration of law in this regard by the Apex Court in **Kurnal Singh v Union of India (2003 (4) SCC 524)** , that the provisions under Section 47 do not depend upon the definition of “persons with disability” under Section 2(t), the Government was not right in insisting that there should be 40% disability. W.P.(C)No.80/10 -5- 8. In the above said case, the Apex Court examined the question in the light of the definition of the term 'disability' under Section 2(i) of the Act and “persons with disability” under Section 2(t). It was pointed out that as far as persons seeking appointment in service under Sections 32 and 33 are concerned, the definition of “person with disability” under Section 2(t) will be applied so that they will have to fulfil the criteria of disability not less than 40%. But, it is pointed out that so far as Section 47 is concerned, what is mentioned is only 'disability' and therefore the said aspect will have to be considered in the light of the fact that the Section provides for benefit to a person who had to suffer the disability while in service. Paragraphs 9 and 10 of the judgment are reproduced below, which is a complete answer to the contentions raised by the respondents that the petitioner should have suffered 40% disability to get the benefit of Section 47. “9. Chap.6 of the Act deals with employment relating to persons with disabilities, who are yet to secure employment. S.47., which falls in Chap.8, deals with an employee, who is already in service and acquires a disability during his service. It must be borne in mind that S.2 of the Act has given distinct and different W.P.(C)No.80/10 -6- definitions of “disability” and person with disability”. It is well settled that in the same enactment if two distinct definitions are given defining a word/expression, they must be understood accordingly in terms of the definition. 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 S.47 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 S.47 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 Sub-section (2) of S.47. **S.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 W.P.(C)No.80/10 -7- provision of a 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 S.47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service. 10. The argument of the learned counsel for the respondent on the basis of the definition given in S.2(t) of the Act that benefit of S.47 is not available to the appellant as he has suffered permanent invalidity cannot be accepted. Because, the appellant was an employee, who has acquired “disability” within the meaning of S.2 (i) of the Act and not a person with disability.” It was held that the provisions are mandatory in the light of the binding nature of the provision itself. 9. The learned counsel for the petitioner also relied upon the decision of this Court in **K.K.Venugopalan v. State of Kerala (2008(1) KHC 535)** to contend that Section 47 of the Act enables an employee to claim that he be accommodated in a post with the same pay scale and service benefits. An identical question as raised in this Writ Petition was considered therein. W.P.(C)No.80/10 -8- ## The dictum laid down is evident from paragraph No.8, which is extracted below: “8. The protection afforded to persons in Government employment under S.47 extends to either dispensation of service or reduction in rank of an employee, who acquires a disability during his service. But in the proviso thereto, it is stated that if an employee is found to be unsuitable on account of the disability to discharge the functions of the post, which he was holding, he could be shifted to some other post with the same pay scale and service benefits. In other words, the proviso to S.47(1) of the Act provides for protection of the pay scale and other service benefits. The second proviso thereto goes one step further and mandates that if it is not possible to adjust an employee against any post, he may be kept in a supernumerary post until a suitable post is available or till he attains the age of superannuation, whichever is earlier. In other words, there is a protection contemplated under S.47 to the following extent: (a) A disabled person is granted protection as regards the post, which he holds, provided the disability is acquired during the service. (b) If by reason of the disability he becomes unsuitable for the post, then protection is afforded to him by requiring the employer to shift him to some other post in the same scale of pay. (c) If by reason of the disability, he is not W.P.(C)No.80/10 -9- suitable to hold any post, the employer is required either to create a supernumerary post or till a suitable post arises to accommodate the same person till he attains the age of superannuation. (d) Sub-section (2) further mandates that no person shall be denied promotion merely on the ground of disability.” It was also held in paragraph No.9 that Section 47 will override any instruction issued under Rules or notifications and the learned Judge expressed the said view in the following words:- “ 9. S.47 of the Act would naturally have a pervasive effect in relation to action taken, in respect of employments in all establishments comprehended by the Act. The mandate imposed under S.47 of the Act, therefore, overrides any instruction under rules or notifications issued by the State under the Public Services Act or the Rules framed thereunder, insofar as it relates to the protection under S.47 of the Act as such.” The facts of the said case are also identical as category change from the post of driver to LDC was sought for by the petitioner therein. Refusal to grant the same was interfered by this Court. 10. In that view of the matter, the denial of scale of pay and the rank attached to the post cannot be said to be correct. W.P.(C)No.80/10 -10- Apart from that none of these aspects have been considered by the Government while passing Exhibit P16. Therefore, Exhibit P16 is quashed to the extent to which it refuses the benefit of Section 47 of the Act. 11. It is stated in the counter affidavit that the petitioner suffered the injury not 'during his official duties'. What is mentioned in Section 47 is only that the disability should have been suffered “during his service”. Therefore no such objections can be raised also. Therefore appropriate fresh orders will be passed in respect of the request for category change as Lower Division Clerk within three months from the date of receipt of a copy of this judgment, in the light of the dictum laid down by the Apex Court and that of this Court in the above cited decisions. The Writ Petition is allowed as above. No costs. ## Sd/-( T.R.RAMACHANDRAN NAIR, JUDGE) dsn