Allowed

Shakuntala Devi v. State of U.P. and 2 Others

Allahabad HC11 Oct 2023WRIA/8845/2023

Case brief

AI extract

What is this about?

The High Court held that a disabled government employee is entitled to salary protection and arrears under the Rights of Persons with Disabilities Act, 2016, overriding State Financial Handbook rules that denied such benefits. The petition was allowed with an award of funds and interest.

What did the court decide?

Respondents directed to award full salary to the deceased employee, pay arrears with 8% interest, and pay Rs.25,000 as costs within 30 days.

Shakuntala Devi Vs State of U.P. and 2… — Pension and Retirement Benefits | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:196401

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Court No. - 34

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Case :- WRIT - A No. - 8845 of 2023 Petitioner :- Shakuntala Devi Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Surya Bhan Singh Counsel for Respondent :- C.S.C.

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Hon'ble Ajit Kumar,J.

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Heard learned counsel for the petitioner and learned Additional Chief Standing Counsel for the State-respondents.

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A personal affidavit has been filed of Mr. Rakesh Chandra who happens to be Assistant Inspector General of Registration posted at Prayagraj and he is also present in the Court. Affidavit is taken on record.

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As per the affidavit that has been filed today, an application moved by the petitioner stating that her husband was suffering from paralysis and ultimately died on 11.12.2020 and so the post retirement dues like pension and GPF amount should be paid. This application was also accompanied by a number of medical certificates evidencing the factum of treatment undergone by the petitioner's husband while he was suffering from paralysis.

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The order passed by the Inspector General, Registration namely Kanchan Verma dated 17.07.2023 has also been appended according to which, petitioner's husband has been given medical leave with pay for the period running from 29.01.2012 to 08.08.2012 (193 days), from 01.07.2017 to 28.10.2017 (120 days) and from 29.10.2018 to 18.04.2018 (172 days). However, from 19.04.2018 to 10.12.2020 counting to 967 days, the deceased had been accorded extraordinary leave without pay.

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Mr. Rakesh Chandra, the Assistant Inspector General, Registration, Prayagraj is not in a position to defend the order passed by the Inspector General, Registration and submits that this discretion has been exercised by the IG Registration in her wisdom and he is only bound to follow the order being Drawing and Disbursing Officer, DDO posted here. He submits that on his part, he has already directed the Additional Director Pension and Treasury, Prayagraj to ensure payment of family pension to the petitioner.

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Upon a pointed query being made to learned Additional Chief Standing Counsel as to why the period of 967 days had been condoned for leave without pay as it had adverse civil consequences, learned Additional Chief Standing Counsel states that this power has been exercised in consonance with provisions contained under the Rule 85 of the Financial Handbook Volume II (Part 2 to 4). However, when he was confronted with the central Act of parliament, namely the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 which subsequently got replaced by new act namely the Rights of Persons with Disabilities Act, 2016 (in short, the Act No.49 of 2016') in which bar of 40% disability has been removed, he submits that petitioner ought to have submitted certificates, evidencing the disease suffered by the petitioner's husband.

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In the argument advanced by the learned Additional Chief Standing Counsel and the action taken by the Inspector General of Registration and the personal affidavit filed today, there is apparent dichotomy. It is on the basis of an application moved by the petitioner that her husband was suffering from disease of paralysis and that the respondents have proceeded to condone the various day of absence from duty in respect of the deceased employee and then finally also condoned his absence from duty for 967 days by granting leave without pay. This conduct of the respondents fully shows that they were satisfied with the documents furnished by the respondent-petitioner and therefore, it does not lie in their mouth now to suggest today that petitioner did not submit the requisite certificates. This stand and approach of the respondents, therefore, in not paying salary to the petitioner's husband for 967 days and in terms thereof arrears to the petitioner cannot be countenanced. The central Act of parliament being Act no.49 of 2016, which has superseded the Parliamentary Act of 1996, is an express exercise of legislative power which the parliament has been conferred upon under Article 253 of the Constitution. In a scheme of the legislative relationship between Center and the States as enshrined in the Constitution, the Central legislature has to prevail as law in respect of the subject matter which are there in the List I (Article 246) in the List III (Concurrent List), if the State has not made any law on the point (Article 249 & 250). The Parliamentary Act No.49 of 2016 is an outcome of international convention and any international treaty is to be signed by the central government or by the union only and it is very much subject matter of List I vide entry-14. Even in cases of inconsistency between Central and State legislation save as otherwise provided, Central Act would prevail vide Article 254. This being the legal position, the Act No.49 of

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2016 has to an overriding effect over and above the Financial Handbook of the State.

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Accordingly, I do not find any justification for the respondents in not acting in terms of the provisions as contained in the parliamentary legislation being Act no.49 of 2016 which grants protection to the disabled person including those who acquire disability during service period. Vide Section 2(s) the person with disability is a person with long term physical, mental, intellectual, sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others. In my considered view, a person suffering from paralysis would fall in this category.

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Vide section 20 of the Act no.49 of 2016, it is clearly prescribed that no discrimination shall be meted out to such persons in the matters of employment. Section 20 is reproduced hereinunder:

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"20. Non-discrimination in employment.

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(1) No Government establishment shall discriminate against any person with disability in any matter relating to employment:

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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, exempt any establishment from the provisions of this section.

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(2) Every Government establishment shall provide reasonable accommodation and appropriate barrier free and conducive environment to employees with disability.

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(3) No promotion shall be denied to a person merely on the ground of disability.

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(4) No Government establishment shall dispense with or reduce in rank, an employee who acquires a disability during his or her service:

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Provided that, if an employee after acquiring disability is not suitable for the post he was holding, shall be shifted to some other post with the same pay scale and service benefits:

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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.

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(5) The appropriate Government may frame policies for posting and transfer of employees with disabilities."

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(emphasis added)

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In view of the above provisions, in my considered view, if the petitioner's husband was suffering from paralysis and was not in a position of fit physical condition to attend the office, such a person definitely deserved protection from the State which is to act as a model employer and hence petitioner's husband was fully entitled to pay protection for the period he could not attend the office for the disease paralysis he suffered from.

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The legal position is also equally sound that ignorance of law is no excuse. In the case of The Swadehi Cotton Mills Co. Ltd. vs. The Government of U.P. & ors; 1975 (4) SCC 37 , the Supreme Court has very clearly held that everyone is bound to know the law. One, therefore cannot take plea of ignorance as to the development of law and, therefore, he may pass any order which is contrary to the law.

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It is worth noticing that even though petitioner's husband was not reporting to duty between the period 2018 and 2019 continuously but respondents never proceeded against him questioning his conduct and putting him under penalty meaning thereby respondents were aware of physical condition of the deceased employee.

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In such above view of the matter, therefore, I am not able to sustain the order dated 17.07.2023 in so far as it allows leave to the deceased employee for 967 days i.e. from 19.04.2018 to 10.12.2020 without pay. It is horrible to imagine and quite depressing too, how the family survived without a single rupee being paid with sole bread earner lying on bed in a paralysed condition. Equally it is shocking to know how administrative authority remained oblivious to the family condition of its employee and remained passive spectator to his plight.

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Thus, I am of the considered view that despite there being parliamentary legislation, the respondents wholly, illegally and arbitrarily applied the principle of Financial Hand Book in not giving pay protection to its employee who suffered paralysis while serving the respondents and gradually acquired more than 80% disability and later died while in employment. Petitioner has been made to run from pillar to post for no justifiable reason. Accordingly, 8% interest is assessed upon the arrears of salary to the period from 19.04.2018 to 10.12.2020. Petitioner is also entitled to cost for being forced to approach the Court for no justifiable reason. The cost is quantified as Rs.25,000/-.

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In view of the above, the respondents are directed to award full

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salary to the deceased employee and consequently, the arrears of salary to the petitioner with 8% interest within a time bound period of thirty days from the date of presentation of certified copy of this order. Petitioner shall also be paid cost of Rs.25,000/- within the same period.

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The writ petition, thus, succeeds and is allowed in above terms.

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Personal appearance of officer concerned stands exempted, notices issued also stand discharged.

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Order Date :- 11.10.2023 P Kesari

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Digitally signed by :- PRACHI KESARWANI High Court of Judicature at Allahabad

Shakuntala Devi v. State of U.P. and 2 Others

Case brief

What is this about?

What did the court decide?

Shakuntala Devi v. State of U.P. and 2 Others

Case brief

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What did the court decide?

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