Sunil Kumar Bhandari vs State of Rajasthan and Others

Sandeep Mehta, J.—By way of the instant writ petition, the petitioner has approached this Court praying for the following relief :--

"It is, therefore, most respectfully prayed that this writ petition may kindly be allowed with costs and by issuance of an appropriate writ, order or direction the petitioner may please be treated on duty w.e.f.14.07.93 and be treated to be kept on supernumerary/any suitable post till his superannuation. It is further prayed that the petitioner may kindly be paid entire salary and allowances as admissible to him. He may also kindly be considered for promotion if due and be given all consequential benefits. The amount of invalid pension may kindly be directed to be adjusted against the salary due to the petitioner."

Facts in brief are that the petitioner was selected by the Rajasthan Public Service Commission and was appointed as Excise Inspector Class-II vide order dated 27.7.1987. He joined duties on 18.8.1987. The petitioner met with an accident on 13.7.1993 and was hospitalized for a fairly long period of time. Despite prolonged treatment, no significant improvement was observed in the petitioner''s condition and he was finally diagnosed as a case of traumatic quadriplegia meaning thereby that he was paralyzed in all four of his limbs. Owing to the after effects of the injuries, the petitioner was unable to discharge duties as an Excise Inspector. Despite that, he was promoted to the post of Excise Inspector Class-I in the year 1996-97. The seniority list of Excise Inspectors Class-I issued on 23.9.1998 is placed on record of the writ petition as Annexure-2 wherein the petitioner''s name finds place at S. No. 37. The petitioner was granted medical leave from 14.7.93 to 20.11.1993. But even thereafter he could not regain fitness to resume the duties. The petitioner claims that though he received the debilitating injury while performing duty, the departmental officials neither informed him about the rights and privileges accruing to him with the introduction of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter in short referred to as the Act of 1995) nor was he extended the benefits thereof. The petitioner himself having been rendered fully paralyzed was not aware of the developments brought around by the new enactment. It is claimed in the writ petition that as the petitioner acquired the disability while in service of the respondent department, he was entitled to all the benefits by being retained in service in view of the mandatory requirement of Section 47 of the Act of 1995. Since, the petitioner was rendered quadriplegic in an accident while in harness, by effect of the above provision the department was under a mandate to assign him a suitable duty which he could perform despite his disability or else, he was required to be kept in service on a supernumerary post until he attains the age of superannuation.

Looking to the petitioner''s physical condition, a medical board was constituted to assess and evaluate the petitioner''s fitness vide letter dated 1.11.1997 Annexure-14. He was examined by the Medical Board on 6.11.1997 and the board after examining the petitioner vide communication Annexure-15 dated 3.2.1998 opined that the petitioner was unfit to resume duties. The department, however, did not take any follow up action in accordance with the Act of 1995 despite receiving the opinion of the Medical Board and the situation of stalemate continued. The petitioner could not rejoin duties on account of his immobility. The petitioner claims that somewhere in the year 2001, the officers of the respondent department advised the petitioner to seek voluntary retirement on medical grounds as he had already put in more than 10 years of service. Claiming ignorance of the provisions of Act of 1995, the petitioner allegedly relied upon the bonafides of the advise given to him by the departmental officials whom he believed to be acting in his best interest and accordingly he submitted an application Annexure-16 dated 22.5.2001 seeking voluntary retirement on medical grounds. Pursuant to the submission of the application, the petitioner was again examined by a Medical Board constituted vide order Annexure-17 dated 4.7.2001. The Medical Board gave its opinion vide letter dated 5.7.2001 reiterating that the petitioner was not fit to resume duties. The petitioner has averred in the writ petition that long after being examined by the Board he did not receive any further intimation from the department. Accordingly he filed an application Annexure-5 dated 27.5.2002 for being paid invalid pension. Thereafter the respondent department sanctioned invalid pension to the petitioner vide order Annexure-4 dated 13.3.2002 and a P.P.O. came to be issued by the respondent No. 2 to the petitioner on 20.6.2003 granting him invalid pension by treating his service to be of 13 years 10 months 19 days. The petitioner claims that despite having submitted an application for voluntary retirement on medical grounds, no official order retiring him from service was ever passed. However, without passing any order retiring the petitioner from service, the respondents sanctioned invalid pension to the petitioner from the date of the Medical Board''s opinion i.e. 5.7.2001. The petitioner has approached this Court by way of the instant writ petition claiming that he deserves to be extended the benefit of Section 47 of the Act of 1995 and praying that the respondents be directed to continue the petitioner in regular service by assigning him supernumerary post in accordance with Section 47 of the Act of 1995. It is also averred that the petitioner had prayed for voluntary retirement on medical grounds w.e.f. 1.6.2001 but the application was never decided and without passing any retirement order, invalid pension was sanctioned to the petitioner w.e.f. 3.7.2001. The action is challenged as being grossly illegal and arbitrary. It is further claimed that the period during which the petitioner could not resume duties on account of his ailment was unjustly treated as extra ordinary leave by orders Annexure-7, 8 and 9. Validity of the said orders is also under challenge in this writ petition.

In reply, the respondents took a stance that the petitioner was found permanently disabled and unable to serve the Government. The department sought the opinion of the Medical Board and in light of the board''s opinion the petitioner was found entitled only for invalid pension which was sanctioned to him in terms of Rule 35(2) of the Pension Rules of 1996. The action of the State Government in retiring the petitioner on the basis of his medical condition is defended in reference to Rule 35(1) of the Rules. It is further stated in the reply that the date of the petitioner''s retirement was made effective from 5.7.2001 and for the period of absence up till that date, he was permitted to avail extra ordinary medical leave.

The petitioner amended his writ petition and thereafter a preliminary reply was filed by the State to the amended writ petition wherein the petitioner''s prayer to seek relief under the Act of 1995 is controverted. It is further submitted that the petitioner having sought retirement of his own accord is estopped from reverting his stance and taking recourse to the provisions of the Act of 1995 and is not entitled to be retained in service.

Learned counsel for the petitioner based his arguments on the medical board''s opinion and the fact that no retirement order was ever passed on the petitioner''s retirement application, heavily relied upon Section 47 of the Act of 1995 and the provisions of the R.S.R. and contended that there is no escape from the conclusion that the petitioner was never retired from service and therefore he deserves to be granted all service benefits treating him to be on continuous duty right from the date he received the incapacitating injuries till he superannuates. He placed reliance upon the decisions rendered in the cases of Kunal Singh Vs. Union of India (UOI) and Another, AIR 2003 SC 1623 : (2003) 96 FLR 990 : (2003) 2 JT 132 : (2003) 2 LLJ 735 : (2003) 2 SCALE 78 : (2003) 4 SCC 524 : (2003) SCC(L&S) 482 : (2003) 1 SCR 1059 : (2003) 2 SLJ 365 : (2003) 1 UJ 733 : (2003) AIRSCW 1013 : (2003) 2 Supreme 102 and Rama v. State of Rajasthan reported in 2005(5) RDD-1439(Raj.) in support of his arguments and urged that the writ petition deserves to be accepted.

Per contra Dr. Acharya, learned counsel for the respondents contended that the petitioner himself submitted an application for voluntary retirement on medical grounds. The said application Annexure-16 is self explanatory and it has to be assumed that the petitioner would be deemed to have retired in light of the prayer made in the application. He, therefore, urged that the action of the respondents in retiring the petitioner on medical grounds and granting invalid pension to the petitioner is justified and does not call for any interference in this writ petition.

This Court had directed the counsel for the respondent department to produce the petitioner''s original service record to substantiate the specific averment made in the reply that the application for voluntary retirement was accepted by the departmental officials. Dr. Acharya, learned counsel appearing for the respondent department, during arguments referred to the record and candidly conceded that there is no document available on record by which, the specific averment in the reply that the application for voluntary retirement was accepted can be substantiated. Thus, there is no escape from the conclusion that the application submitted by the petitioner seeking voluntary retirement on medical grounds was never accepted or acted upon by the authorities. It is further relevant to note here that the application submitted by the petitioner bears a specific condition that he should be retired w.e.f. 1.6.2001. However, the said prayer was not acted upon and instead the petitioner was directed to appear before the Medical Board. The Medical Board gave its opinion on 5.7.2001 and thereafter, invalid pension was sanctioned to the petitioner vide order Annexure-4 dated 13.3.2002. The order mentions that invalid pension was being sanctioned to the petitioner w.e.f. 5.7.2001 treating him to be retired from the said date.

Arguments were heard by this Court and the matter had been closed for judgment on 13.1.2015 but before the judgment could be pronounced, learned counsel for the respondent sought permission from the Court and filed an additional affidavit after providing a copy thereof to the learned counsel for the petitioner. Along with the copy of the affidavit, learned counsel for the respondents has annexed copies of certain documents portraying that even before sanction of disability pension, the petitioner acquired a dealership licence under the Rajasthan Petroleum Products (Licensing and Control) Order, 1990 and took up the business of petroleum products. A Petrol Pump by the name M/s. Satyasai Filling Station is being operated by the petitioner at Village Nankpura Tehsil Mandal Dist. Bhilwara. A copy of the licence issued in the petitioner''s name under the Rajasthan Petroleum Products (Licensing and Control) Order, 1990 has been annexed with the additional affidavit. The licence was issued on 10.8.2001 and is valid upto 31.3.2021. On the strength of these facts, learned counsel for the respondents urged that as the petitioner was already gainfully employed when the writ petition was filed, the prayer made in the instant writ petition cannot be accepted. To this contention, learned counsel for the petitioner submitted that authorities acted in a high handed manner and left the petitioner in a helpless condition by sanctioning him a paltry invalid pension vide order dated 25.8.2001. Thus, he was forced to look out for other sources of survival and accordingly, he applied for a dealership of petroleum products. As per him, merely on account of this fact, the benefit of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 cannot be denied to the petitioner. It was also submitted that an employee after retiring from government service is entitled to indulge in business activities as per Rule 9 of the Pension Rules, 1996.

Heard and considered the arguments advanced by the learned counsel for the parties. Perused the material placed on record.

It is understood that procuring a dealership and licence for a petrol pump is long drawn out process. As has been noticed above, the licence under the Rajasthan Petroleum Products (Licensing and Control) Order, 1990 was issued to the petitioner on 10.8.2001. Thus, it can easily be assumed that the petitioner must have initiated the process for procurement of the petrol pump dealership much before submitting the application for retirement. A licence under the Rajasthan Petroleum Products (Licensing and Control) Order, 1990 was issued to the petitioner just two months after the application for voluntary retirement was submitted. Looking to the physical and medical condition of the petitioner as certified by the medical board, it is quite probable that he may be operating the dealership through hired aid, or assistance but certainly, the assertion made by the petitioner that he was totally disabled and thus prevented from fending for himself on account of the disability suffered by him in the accident is not acceptable in entirety. However, at the same time, the fact remains that no order whatsoever was passed on the petitioner''s application for voluntary retirement by the respondents. In this background, there was no occasion for the respondents to have sanctioned disability pension to the petitioner.

The decision of the respondent authorities in treating the petitioner on extra ordinary medical leave for the period between the date on which the petitioner suffered injuries in the accident till the date of his alleged voluntary retirement is also illegal in view of the mandatory provisions of the Act of 1995, particularly Section 47 thereof. The respondent authorities were under an obligation to treat the petitioner to be on duty during this period and also to make payment of regular salary, emoluments etc. to him for this period.

As a consequence, the impugned order Annexure-4 dated 13.3.2002 whereby, the petitioner was sanctioned disability pension under Rajasthan Civil Services (Pension) Rules, 1996 and the orders Annexure-7, 8 and 9 whereby extraordinary medical leave was sanctioned to the petitioner deserve to be and are hereby quashed.

Having concluded that the decision of the authorities in sanctioning the invalid pension to the petitioner and granting him extraordinary leave was absolutely illegal and also the fact that no order retiring the petitioner from service was ever passed, now the Court is called upon to consider as to what relief can be granted to the petitioner. The situation of predicament has been created because of the undisputed facts which came to light through the additional affidavit filed by the respondent authorities which reveal that the petitioner had acquired a petroleum dealership licence long before filing the instant writ petition. Upon going through the Rajasthan Pension Rules, it is evident that the quantum of invalid pension and regular pension is significantly different. Though as per Rule 9 of the Pension Rules, a retired government servant can indulge in commercial employment but if he chose to do so before the expiry of two years from the date of his retirement, then he is required to take previous sanction of the Government. One alternative which could possibly have been considered by the Court would be to offer the petitioner the benefits of Section 47 of the Act of 1995 by directing him to leave the petroleum dealership but looking to the fact that the petitioner is running the dealership for the last nearly 14 years, that would not be a justified option. Thus, the appropriate and justified option would be to treat the petitioner retired from government service upon completing pensionable service and thereafter to direct payment of regular pension to him in accordance with the Pension Rules.

Accordingly, whilst partly allowing the writ petition, it is hereby directed that the petitioner shall be deemed to have retired from government service upon completing pensionable service tenure in accordance with the Rajasthan Pension Rules, 1996. He shall be treated to be in continuous service from the date of his appointment till the date of his deemed retirement (this direction is being given in view of the mandatory language of Section 47 of the Act of 1995). The petitioner shall be entitled to salary and other emoluments for this period. The respondents shall pass appropriate orders in this regard forthwith and the accrued amount, if any, shall be paid to the petitioner within two months from today pursuant to his deemed retirement from service in terms of this Court''s direction. The petitioner will be paid regular pension in accordance with the Pension Rules from the date of his deemed retirement which shall be decided by the authorities in terms of the above directions. The amount already paid to the petitioner towards invalid pension shall be adjusted appropriately. The due amount if any accruing to the petitioner in terms of the above directions shall carry interest @ 9% from the date of accrual till date of actual payment.

The writ petition is allowed in the above terms. No order as to costs.