@JUDGMENTTAG-ORDER
V. Ramasubramanian, J.@mdashAt a time when the very adjective "Disabled" has taken a different connotation as "Differently Abled", the respondents have sent the petitioner out of service on the ground that he is medically unfit to continue in service, forcing him to file the above writ petition.
2. The petitioner was originally selected and appointed as a Second Grade Warder in the Tamil Nadu Prison Subordinate Service. He was promoted as Grade-I Warder with effect from 1984 and was promoted as Chief Head Warder with effect from 14.10.1998.
3. On 31.8.1999, the petitioner suffered an injury and entered on medical life. When he was on medically leave, he was promoted as Assistant Jailor on temporary basis by the proceedings of the Superintendent of Prisons, Pudukottai dated 9.12.1999 and posted to the Sub Jail, Nannilam. In pursuance of the said order, he reported before the Superintendent of Prisons, Borstal School, Pudukottai, on 1.3.2000 for the purpose of taking charge at the Sub Jail, Nannilam. He was permitted to take charge as Assistant Jailor on 1.3.2000 and he started working in the promoted post from 1.3.2000.
4. After more than three years of the temporary promotion of the petitioner as Assistant Jailor, the promotion Board was constituted for the purpose of selecting candidates for promotion on regular basis, with reference to the vacancies for the year 2003-2004. The Promotion Board met on 17.11.2003 and 18.11.2003 and based upon its recommendations, a list of approved candidates selected for promotion as Assistant Jailors on regular basis, was communicated by the Additional Director of Prison, in his communication dated 16.12.2003. In the annexure to the said proceeding, it was indicated that the petitioner was over looked for promotion on account of being physically unfit.
5. In pursuance of the said proceedings, the Superintendent of Borstal School, addressed a letter dated 8.3.2004 to the Joint Director of Health Services, Tiruvarur, requesting him to examine the petitioner and ascertain if he was medically fit to hold a post as a Field Officer in terms of Rule 47 (A to K) of the Tamil Nadu Prison Manual Part-II.JJ
6. The Medical Board at Tiruvarur, comprising of the Joint Director of Health Services as its Chairman and three Medical Officers as Members, examined the petitioner in the Government District Headquarters Hospital, Tiruvarur on 24.3.2004 and issued a Certificate that he was fit to be employed as a Field Officer in terms of the aforesaid Rules.
7. Despite the said Certificate issued by the Medical Board, to whom he was referred by the Department itself, the petitioner was reverted by the proceedings of the Superintendent of Borstal School, Pudukottai dated 10.4.2004 and posted as Chief Head Warder in the same school on 12.4.2004.
8. The petitioner gave a representation dated 14.4.2004 to the second respondent, pointing out the Fitness Certificate issued by the appropriate Medical Board and requesting him to permit his continuance as Assistant Jailor. However, the second respondent appears to have sent a letter dated 6.5.2004 to the Superintendent of Borstal School, directing him to refer the petitioner once again to the Medical Board for examining whether he is medically fit in terms of Rule 385 of the Tamil Nadu Prison Manual Part-II, for the purpose of undergoing Drill and Parade. Therefore, the Superintendent of Borstal School, by his proceedings dated 19.5.2004, sent the petitioner once again for medical examination.
9. In pursuance of the above, the petitioner was sent for medical examination before the Regional Medical Board at Thanjavur. The said Medical Board examined the petitioner in July, 2004 and gave an opinion that the petitioner will not be able to perform Drill/Parade or the work specified under Rule 385 of the Tamil Nadu Prison Manual. In pursuance of the said second opinion, the petitioner gave a representation dated 19.7.2004 to the second respondent, requesting him to permit his continuance as Assistant Jailor by granting exemption from participating in Drill/Parade.
10. The said representation perhaps infuriated the second respondent, as a result of which the second respondent directed the Superintendent of Borstal School to refer the petitioner to the Medical Board once again for finding out if he could be retired on medical invalidation. Consequently, the Superintendent of Borstal School referred the petitioner once again to the Medical Board and the Medical Board gave an opinion on 30.10.2004 that the petitioner was unfit to perform the duties of a Field Officer. Based upon the said report, the first respondent passed an order dated 14.3.2005 retiring the petitioner with effect from 14.3.2005 on medical invalidation under Rule 36 of Tamil Nadu Pension Rules. Challenging the said proceedings, the petitioner has filed the above writ petition, for the various grounds stated in the affidavit filed in support of the writ petition as well as the additional grounds raised by him subsequently.
11. I have heard Mr. B. Kumar, learned Senior Counsel appearing for the petitioner and Mr. V. Arun, learned Government Advocate appearing for the respondents.
12. In view of the fact that the matter relates to the retirement of the petitioner on medical invalidation, at the age of 52 years, after he had completed about 30 years of service and also in view of the fact that the issue is squarely covered by the Statutory Provisions and various judgments of the Apex Court and this Court, I have taken up the main writ petition itself for final disposal, with the consent of both the parties.
13. On facts as they emerge from the various orders passed by the respondents, two indisputable facts surface and stare at one''s face. They are as follows:
a) The petitioner was temporarily promoted as Assistant Jailor and he joined duty at the Sub Jail, Nannilam as Assistant Jailor on 1.3.2000 and discharged the duties of the post till his reversion on 12.4.2004. His service in the promoted post of Assistant Jailor during this period of four years, did not come to any adverse notice. It is relevant to see that the petitioner suffered an injury on 31.8.1999 leading to a physical disability and his service in the promoted post was actually subsequent to the sufferance of the disability.
b) One Medical Board at Tiruvarur comprising of the Joint Director of Health Services as its Chairman and three Medical Officers as its Members, found the petitioner fit for continuing as Assistant Jailor, on 24.3.2004. But another Medical Board comprising of a Chairman and two Members at Thanjavur found him unfit for performing Drill/Parade or any of the works specified under Rule 385 of the Tamil Nadu Prison Manual in July, 2004. Thus, there had been a conflict of opinion between two Medical Boards.
14. Keeping the above two crucial aspects in mind, if we examine the grounds on which the petitioner challenges the impugned order of compulsory retirement, it is clear that the impugned order cannot be sustained on any factual or legal basis.
15. In order to give effect to the Constitutional Mandate contained in Article 21 of the Constitution, which has been interpreted to include the right to livelihood and a right to live with human dignity and also with a view to give effect to the "Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region". The Parliament enacted the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (Act No. 1 of 1996). The statement of objects and reasons of the said Act reads as follows:
The meeting to launch the Asian and Pacific Decade of the Disabled Persons 1993-2002 convened by the Economic and Social Commission for Asian and Pacific Region, held at Beijing on 1st to 5th December, 1992 adopted the proclamation on the Full Participation and Equality of People with Disabilities in the Asia and the Pacific region. India is a signatory to the said proclamation and it is necessary to enact a suitable legislation to provide for the following:
(i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training employment and rehabilitation of persons with disabilities;
(ii) to create barrier free environment for persons with disabilities;
(iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, vis-a-vis, non-disabled persons;
(iv) to counteract any situation of the abuse and the exploitation of persons with disabilities;
(v) to lay down a strategies for comprehensive development of programmes and services and equalisation of opportunities for persons with disabilities; and
(vi) to lay down a strategies for comprehensive development programmes and services and equalisation of opportunities for persons with disabilities; and
2. Accordingly, it is proposed to provide inter alia for the constitution of Co-ordination Committees and Executive Committees at the Central and State levels to carry out the various functions assigned to them. Within the limits of their economic capacity and development the appropriate Governments and the local authorities will have to undertake various measures for the prevention and early detection of disabilities, creation of barrier free environment, provision for rehabilitation services etc. The Bill also provides for education, employment and vocational training, reservation in identified posts, research and manpower development, establishment of homes for persons with severe disabilities, etc. For effective implementation of the provisions of the Bill, appointment of the Chief Commissioner for persons with disabilities at the Central level and Commissioners for persons with disabilities at the State level clothed with powers to monitor the funds disbursed by the Central and State Governments and also to take steps to safeguard the rights of the persons with disabilities is also envisaged.
16. Section 47 of the said Act, which applies in all force to the case on hand 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 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.
17. Even before the said Enactment, the Supreme Court had an occasion to consider the right of an employee who becomes incapacitated to perform the duties of the post held by him, in
Article 21 protects the right to livelihood as an integral facet of right to life. When an employee is afflicted with unfortunate disease, due to which he is unable to perform the duties of the post he was holding, the employer must make every endeavour to adjust him in a post in which the employee would be suitable to discharge the duties.
18. After the aforesaid Enactment, the very scope of Section 47 of the said Act, came up for consideration before the Supreme Court in
8. The need for a comprehensive legislation for safeguarding the rights of persons with disabilities and enabling them to enjoy equal opportunities and to help them to fully participate in nature life was felt for a long time. To realize objective that people with disabilities should have equal opportunities and keeping their hopes and aspirations in view a meeting called the "Meet to Launch the Asian and Pacific Decades of Disabled Persons'' was held in Beijing in the first week of December, 1992 by the Asican and Pacific countries to ensure ''full participation and equality of people with disabilities in the Asian and Pacific Regions'' This Meeting was held by the Economic and Social Commission for Asia and Pacific. A Proclamation was adopted in the said meeting. India was a signatory to the said Proclamation and they agreed to give effect to the same. Pursuant thereto this Act was enacted, which came into force on 1st January, 1996. The Act provides some sort of succor to the disabled persons.
9. Chapter VI of the Act deals with employment relating to persons with disabilities, who are yet to secure employment. Section 47, which falls in Chapter VIII, deals with an employee, who is already in service and acquires a disability during his service. It must be borne in mind that Section 2 of the Act has given distinct and different 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 given defining a word/expression, they must be understood accordingly in terms of the definition. It must be remembered that person does not acquire or suffer disability by choice. An employee, who acquires disability during his service, is sought to be protected u/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 Section 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 disability as is evident from Sub-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 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service.
19. The aforesaid decision of the Supreme Court has been followed in two Division Bench judgments of this Court in Metropolitan Transport Corporation v. The Presiding Officer 2004 W L.R. 398 and Metropolitan Transport Corporation Ltd., Chennai-2 v. K. Ravichandran 2005 2 L.W. 565.
20. Thus it is clear that the reversion of the petitioner from the post of Assistant Jailor on medical invalidation as well as his retirement are violative of the aforesaid provisions of the Statute inasmuch as the respondents did not even apply their mind and examine if the petitioner could be shifted to some other post carrying the same scale of pay, in terms of the Proviso u/s 47(1) of the said Act.
21. There is yet another aspect which makes the impugned order illegal. The impugned order is purportedly passed in exercise of the power conferred under Rule 36 of the Tamilnadu Pension Rules. Interestingly, the said rule deals only with the grant of pension for a person who is declared to be medically invalid. There is no provision either in the General Rules for Tamilnadu State and Subordinate Services or in the Fundamental Rules of the Government of Tamilnadu, for retiring a person on medical invalidation.
22. The relationship of master and servant between the Government and its employees is terminated only by any of the following methods namely, (1) death, (2) resignation, (3) discharge/ removal/ dismissal from service, (4) Retirement on Superannuation (5) Compulsory Retirement or (6) Voluntary Retirement. Each of the above methods of termination of the jural relationship, is governed by specific provisions contained in the rules, issued by the Government in exercise of the power conferred under the Proviso to Article 309 of the Constitution. For easy appreciation, they are presented in the following tabular form:
a. Resignation --- Rule 41-A of the General Rules for Tamilnadu State and subordinate Services
b. Discharge --- Rule 8 and 26 of the General Rules for Tamilnadu State and subordinate Services
c. Dismissal/Removal - Rule 8 and 17(b) of the Tamilnadu Civil Services (Discipline and Appeal) Rules and
d. Retirement (superannuation, compulsory and voluntary)-Rule 56 of the Fundamental Rules
23. After the termination of such relationship, the eligibility of a person for pension, the various classes of pension and the conditions for their grant are dealt with under the Tamilnadu Pension Rules. Rules 32 to 41 of the Tamilnadu Pension Rules deal with the various classes of pension such as superannuation pension, retiring pension, pension on absorption to a company/ corporation/or body corporate, invalid pension, compensation pension and compulsory retirement pension and the conditions for their grant.
24. It is seen from a critical analysis of the aforesaid rules that while the substantive act of severance of the relationship of master and servant is governed by the provisions of other rules (namely General Rules, Fundamental Rules and Discipline Rules), the eligibility for pension, the classes of pension to which a person is eligible and the method of grant of pension alone are governed by the Tamilnadu Pension Rules.
25. In other words, the substantive act of severance of the relationship of master and servant, on medical invalidation, is not covered by any rule issued by the Government. Therefore the respondents have taken refuge under Rule 36 of the Tamilnadu Pension Rules itself, to terminate the services of the petitioner, as they could not resort to or invoke the provisions of any other rule. But the said Rule 36 of the Tamilnadu Pension Rules, deals only with the consequences of medical invalidation (namely the payment of invalid pension) and not with the substantive act of invalidating a person on medical grounds, as seen from a bare perusal of the rule, which reads as follows:
Rule 36. Invalid pension.---(1) A Government servant who is declared by the appropriate medical authority to be permanently incapacitated for further service in accordance with the instructions on the subject, may be granted invalid pension.
Explanation.--For the purpose of this rule---
(a) If the Officer submitting the application for invalidation is in India, then the examining medical authority shall be--
(1) A Medical Board in the case of all gazetted Government servants and those non-gazetted Government servants whose pay as defined in Rule 9(21) of the Fundamental Rules exceeds Rs. 750 and above.
(ii) (a) Civil Surgeon or a District Medical Officer or a Medical Officer of equivalent status in other cases.
(b) If the officer submitting the application is on leave elsewhere than in India, then the examination shall be arranged through the Indian Missions abroad by a Medical Board consisting of a Physician, a Surgeon and an Ophthalmologist, each of them having the status of a consultant. A lady doctor shall be included as a member of the Medical Board wherever a woman candidate is to be examined.
If any doubt arises regarding the validity of a certificate (as in Form 23) by the Medical Board arranged by the Indian Mission abroad, the Audit Officer must not of his own motion reject the certificate as invalid, but must submit the matter for the decision of Government.
NOTE.--Government may delegate its power under this rule to Heads of Departments.
(c) Except in the case of the officer on leave elsewhere than in India, no medical certificate of incapacity for service may be granted unless the applicant produced a letter to show that the head of his office or department, is aware of his intention to appear before the Medical Officer. The Medical Officer shall also be supplied by the head of the office or department in which the applicant is employed with a statement of what appears from official records to be applicant''s age. Where the applicant has a service book, the age there recorded should be reported.
NOTE.--(1) Honorary Surgeons and Physicians may issue certificates (as in Form 24) invaliding for further service to Government servants who are patients in their wards on receipt of a requisition from the heads of offices or departments to which the Government servants belong. Such invaliding certificates issued in Madras City should be countersigned by the Director of Medical Education.
The countersignature of the Director of Medical Education in the invalid certificate of an officer serving in the mofussil is not necessary.
NOTE.--(2) In cases where the disease from which an applicant is suffering is curable by an operation, but this, he refused to undergo and is therefore invalided. In these cases, no pension or gratuity is admissible. Each case of invalidation on account of a curable disease should be decided on merits. The Accountant-General should forward such cases for the orders of Government.
NOTE.--(3) Government may dispense with a medical certificate of incapacity for further service in a case of gratuity and sanction the application.
NOTE.--(4) An officer discharged on other grounds has no claims under this Rule even though he can produce medical evidence of incapacity for service.
NOTE.--(5) The system of taking finger prints by Medical Officers on the medical certificates in the case of invalid pension and commutation of pension should remain in force.
NOTE.--(6) An Officer who has submitted a medical certificate of incapacity for further service shall, if he is on duty be invalided from service from the date of relief of his duties, which should be arranged without delay on receipt of the medical certificate or if he is on leave, on the expiry of such leave. If he is on leave at the time of submission of the medical certificate, he shall be invalided from service on the expiry of that leave or extension of leave, if any, granted to him under S.R.24 under Rule 74(a) contained in Annexure II, Part I of the Fundamental Rules.
NOTE.--(7) All non-gazetted Government servants as to whose fitness for further service there may be doubt, should unless they happen to be absent in other districts, on long leave, be sent for examination before the District Medical Officer of the district in which they are serving. Where a Government servant''s jurisdiction falls within more than one Revenue district as may be departmentally convenient. If, in special cases, he may be required to appear before the District Medical Officer of such district as may be departmentally convenient. If, in special cases, this procedure has necessarily to be departed from, the reasons therefore should be recorded in writing and communicated to the commissioned Medical Officer, who is asked to examine the applicant.
NOTE.--(8) Invaliding medical certificates under this rule should be given by Medical Officers registered under Medical Registration Act 1914, and if any doubt arises in a particular case, it should be referred to the Director of Medical Education for decision or countersignature.
NOTE.--(9) The Director, Central Leprosy, Teaching and Research Institute, Tirumani is deemed to be a Civil Surgeon for the purpose of granting invaliding certificates to Government servants under his treatment for leprosy. The medical certificate in these cases should also be countersigned by the Director of Medical Education.
NOTE.--(10) All cases in which it is certified that the incapacity for service is due to irregular or intemperate habits, should be submitted to Government for orders through the proper channel, together with the opinion of the Director of Medical Education.
NOTE.--(11) (1) In the case of non-gazetted mofussil police officers residing in Madras during their period of leave, the certificate of unfitness for further service should be granted by the Police Surgeon.
(2) Where the medical authority referred to in Sub-rule (1) has declared a Government servant fit for further service of less laborious character than that which he has been doing, he may, if possible, be employed on lower pay and if there be no means of employing him even on a lower pay he may be admitted to pension.
(3) (a) If the incapacity is directly due to the irregular or intemperate habits of a Government servant, no pension may be granted.
(b) If the incapacity has not been accelerated or aggravated by them, it should be for the pension sanctioning authority to decide what reduction should be made on this account.
26. The invocation of the said rule for sending a person out of employment has the potential of being misused. There are no guidelines under the said Rule 36 regarding the authority who is empowered to pass an order of medical invalidation, the procedure to be adopted for medical invalidation and the remedies available to a person who is sought to be invalidated. Therefore the invocation of such a rule has the potential danger of being an uncontrolled exercise of power and hence it is essential for the Government to frame appropriate rules for medical invalidation.
27. In any event, in the present case, even the minimum requirements of Rule 36 are not satisfied. Even as per the impugned order, the Medical Board at Thanjavur merely opined that the petitioner is not fit to do the duties of a Field Officer with reference to the provisions contained in the Prison Manual. But the basic requirement under Rule 36 is that the officer should have been declared by the appropriate medical authority to be "permanently incapacitated for further service". No such finding is reflected in the impugned order this case. Therefore the impugned order does not even satisfy the requirement of Rule 36.
28. Note (7) under Rule 36 extracted above makes it clear that the jurisdiction to examine a person for determining his fitness to continue in service vests with the District Medical Officer of the district in which he is serving. In this case the petitioner was serving in Nannilam in Thiruvarur District and hence he was referred to the Board at Thiruvarur, where he was examined by the Board comprising of Joint Director of Health Services and 3 Medical Officers. This was the Board which had the jurisdiction to examine the petitioner under Note (7) of Rule 36. This Board declared the petitioner medically fit. But the respondents referred the petitioner to the Board for a second time for the purpose of finding out if he was fit for promotion and hence he was sent for examination to a Board at Thanjavur which declared him unfit for continuance as a Field Officer. Subsequently, the respondents referred the case to the Medical Board at Thanjavur for a third time to find out his fitness to continue in service and as seen from the impugned order the Medical Board opined that the petitioner could not carry on the duties of a Field Officer. Thus the procedure adopted by the respondents in sending the petitioner for a second time and that too, to a medical board outside the district in which he was working, is violative of Rule 36. Therefore the reversion of the petitioner after 4 years of his promotion (which promotion itself was ordered after the petitioner sustained an injury) and his subsequent retirement from service, are violative of the provisions of Rule 36 of the Tamilnadu Pension Rules also.
29. Under the above circumstances, the writ petition is allowed, the impugned order is set aside and the respondents are directed to reinstate the petitioner into service within 4 weeks from the date of receipt or production of a copy of this order, either in the post of Assistant Jailor or in an equivalent post carrying the same scale of pay as that of the post of Assistant Jailor with all consequential benefits. The amount of invalid pension or any other pension, if already paid to the petitioner during the period from 14-3-2005 till the date of reinstatement, shall be adjusted towards the full pay and allowances payable to the petitioner for the said period. If the petitioner had already received any other terminal benefits such as gratuity etc., he shall refund the same to the Government at or before joining duty on reinstatement. No costs.
30. Before parting, it is necessary to point out that those who suffer from physical disabilities need not necessarily be a dead weight in service. Mr. Stephen William Hawking now celebrated as one of the greatest Theoretical Physicist of the Century, after Albert Einstein, has performed marvelous scientific Fetes, despite suffering from an incurable disease of the nervous system making him unable to speak or move more than a few hand and face muscles. Therefore, the attitude on the part of the respondents towards the petitioner is highly deplorable.
