Gulshan Kumar vs State of Haryana and Others

Rajesh Bindal, J.—The petitioner, who was working as Accountant with Municipal Corporation, Rohtak, has approached this court impugning the action of the authorities, whereby he has not been permitted to continue in service till the age of 60 years despite the fact that he was physically disabled to the extent of 70%. Briefly, the pleaded facts are that the petitioner, whose date of birth is 17.2.1954, joined as Clerk on 6.5.1972. Thereafter, he was promoted as Accountant. On 22.7.2011, he was sent on deputation to Municipal Corporation, Rohtak. On attaining the age of superannuation, the petitioner was to retire from service on 29.2.2012. As the right leg of the petitioner had been amputated, he became physically disabled to the extent of 70%. He remained admitted in the hospital from 6.1.2012 to 9.1.2012 and the stitches were removed only on 24.1.2012. He applied for issuance of certificate for his being physically disabled on 3.2.2012. The petitioner was examined by a Board of Doctors and issued a certificate of permanent disability to the extent of 70% on 9.2.2012. Immediately thereafter, the petitioner applied to the authorities on 24.2.2012 before his retirement for permitting him to continue in service till the age of 60 years. However, he was relieved from his duties vide office order dated 29.2.2012. Even the appeal preferred by the petitioner to the Director, Urban Local Bodies, Haryana was also rejected on 10.7.2012. It is at this stage that the petitioner has approached this court praying that action of the authorities be set aside and the petitioner be permitted to continue in service till the age of 60 years.

Learned counsel for the petitioner submitted that the ground on which the case of the petitioner for extension in service has been rejected is that the application had not been submitted 3 months prior to the date of his retirement. In the present case, the same was not possible as the petitioner was lastly operated upon for amputation of his right leg only on 4.11.2011. He remained admitted in the hospital from 6.1.2012 to 9.1.2012. The stitches were removed on 24.1.2012. After he got the disability certificate on 9.2.2012, he applied for extension in service on 24.2.2012 well before his retirement. The disability certificate had been issued by a Board of Doctors of PGIMS, Rohtak. He further submitted that the instructions issued by the government providing for extension in service to the physically disabled employees clearly provide that the application could be filed upto the date of retirement, though normally it should be filed at least 3 months before the retirement to enable the department to carry out the requisite verification. In the present case, the petitioner was unable to move the application 3 months in advance considering the fact that his right leg was amputated just a month prior to his retirement.

On the other hand, learned counsel for respondent No. 4 submitted that extension in service to the petitioner is to be granted by the Director, Urban Local Bodies, Haryana, being the competent authority.

Learned counsel for the State defended the action of the authorities stating that the date of birth of the petitioner being 17.2.1954, he completed the age of 58 years on 16.2.2012. The application for extension in service was filed on 24.2.2012, hence, was not covered under the instructions. He has also referred to the communication dated 30.4.2012 from the office of Financial Commissioner & Principal Secretary to Government of Haryana, Urban Local Bodies issuing a clarification in the case of one Chand Ram Clerk, whose case for extension in service was rejected only on the ground that he had filed the application one month before the date of his retirement. Learned counsel further submitted that period has been prescribed in the instructions only for the reason that the authorities also require some time for verification of the claim made by an employee. If an application is filed at the fag-end, the extension in service is not possible. The employees have to be alive of their rights and move the application well within time. In the present case, the petitioner is to be blamed on account of delayed action by him.

Heard learned counsel for the parties and perused the paper book.

The facts, which are not in dispute, are that the date of birth of the petitioner is 17.2.1954 and further as contained in paragraphs 4 and 5 of the petition, which are extracted below:

That right leg of the petitioner amputated at Pt. B.D. Sharma, P.G.I.M.S. Rohtak on 4.11.2011, 15.11.2011 and 28.11.2011 three times and he remained in the hospital for the period 4.11.2011 to 28.11.2011 and discharged on 28.11.2011 with unstitched wound with the advice to daily dressing of wound and petitioner remained on bed.

That the wound of the petitioner has been stitched on 6.1.2012 at Pt. B.D. Sharma, P.G.I.M.S. Rohtak and he remain admitted in the hospital from the period 6.1.2012 to 9.1.2012 and the stitches were removed on 24.1.2012 as per OPD card of the Pt. B.D. Sharma, P.G.I.M.S. Rohtak.

In terms of the rules applicable, an employee retires on the last date of the month in which he attains the age of 58 years. In the present case, the date of retirement of the petitioner, in normal circumstances, would be 29.2.2012. The Government of Haryana issued instructions on 31.1.2006 raising the age of retirement of physically disabled government employees, who possess minimum degree of disability to the extent of 70% or above, from 58 to 60 years. Some issues evolved in the process of implementation of the instructions and one of them was the period during which the application for extension in service is to be filed. The same was clarified vide communication dated 28.3.2006 (Annexure P-11). One of the points, on which clarification was given was the time limit upto which the disability certificate is required to be submitted. The answer to that was given in paragraph 3 of the aforesaid clarification, which is extracted below:

Regarding issue No. (b) technically any employee who submits the papers even upto the date of retirement can seek advantage of the instructions. However it would be normally expected that the employees should submit the requisite certificate atleast 3 months before the date of retirement to enable the department to carry out the requisite verification in time. However, a disability occurring later than due date of application can be considered upto the date of acquiring of 58 years of age by the employees concerned.

This decision may please be brought to the notice of all concerned for strict compliance.

A perusal of the aforesaid clarification shows that any employee, who submits paper even upto the date of retirement, can seek benefit of the instructions. The date of retirement of the petitioner was 29.2.2012. The application was admittedly filed by him on 24.2.2012, hence, the same cannot be said to be belated.

Another condition in the aforesaid clarification is that the disability should have occurred prior to the date an employee attains the age of 58 years. In the present case, it is not in dispute that the petitioner had suffered injury and had to be operated upon for amputation of his right leg before he had attained the age of 58 years. The undisputed facts on record are that he was finally operated upon on 6.1.2012 and he had attained the age of 58 years on 16.2.2012.

The ground on which the case of the petitioner for extension in service has been rejected is totally misconceived and in fact shows total insensitiveness and non-application of mind by the authorities. In fact, the manner in which the case of the petitioner has been dealt with has defeated the very purpose for which the instructions have been issued. The impugned communication (Annexure P-7), vide which the case of the petitioner was rejected shows that the reason given is that the application had to be submitted three months before the date of retirement. While rejecting the case of the petitioner on that ground, the authorities have failed to appreciate the fact that the instructions/clarification issued by the Government on 28.3.2006 clearly provided that application for extension in service could be filed before the last date of retirement. However, normally it should be filed three months in advance, but in the present case, the application could not be filed three months in advance for the reason that the petitioner acquired permanent disability nearly a month before the date of his retirement, hence, rejection of the case of the petitioner on that ground is totally misconceived and deserves to be set aside. The respondents are directed to take the petitioner back in service forthwith and allow him to continue till the age of 60 years as per rules/instructions.

As the case of the petitioner for extension in service was rejected with total non-application of mind and even ignoring the instructions/clarification issued by the State Government and as a result of which the petitioner was made to rush to this court, respondents No. 1 to 3 are burdened with cost of Rs. 20,000/-, which shall be paid to the petitioner by way of bank draft within a period of one month from today. The petition stands disposed of.