Sudhir Pal Vs Union of India and Others — Punjab & Haryana HC (2025) — LawSathi Research

Sudhir Pal Vs Union of India and Others — Punjab & Haryana HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Petition allowed; impugned orders set aside; the order of recovery of salary for the period 23.07.2015 to 28.10.2016 set aside; any recovery already made from the petitioner to be refunded within eight weeks from receipt of a certified copy of the order.

Issue for consideration

Whether the respondents could lawfully effect recovery of the salary paid to the petitioner for the period 23.07.2015 to 28.10.2016 on the ground that no supernumerary post was created/extended to adjust him after his medical decategorisation. +1 more

Court's answer

It was for the respondents to continue the supernumerary post until the petitioner was adjusted on any post, i.e. upto 28.10.2016; their own failure to continue the supernumerary post beyond 23.07.2015 cannot be a ground to recover the salary paid to him for the intervening period.

Ratio / Principle

As per the 1995 Act, no prejudice can be caused to a disabled employee who became disabled while performing his/her duties; hence, withdrawing salary already paid to the petitioner, who became disabled during performance of his duties, is beyond the jurisdiction of the respondents.

Key takeaways

The learned Central Administrative Tribunal failed to appreciate that once, under Section 47 of the 1995 Act, the petitioner was entitled to the same salary after being declared medically unfit, and that salary was paid, the same could not be withdrawn on the ground that the supernumerary post was not extended beyond 23.07.2015, which act is attributable to the respondents only.ratio¶¶35
Nothing on record shows that the petitioner was actually appointed on any post after being disabled (he was declared unsuitable for Technician-II/Boiler Maker and only recommended, not appointed, for Running Room Cook and Dresser); he therefore remained in continuous employment with the respondents, entitling him to the salary of the post on which he was working when he became disabled, i.e. Assistant Loco Pilot, which was rightly paid and cannot be withdrawn.ratio¶¶36

Detailed headnote1 paragraphs

Service law — medically decategorised employee — Section 47, Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995 — supernumerary post — recovery of salary impermissible. Sudhir Pal, appointed as Assistant Loco Pilot, was medically decategorised on 21.10.2010; although declared fit for category A-3 from 09.11.2010, he was not allowed to work and drew salary against a supernumerary post, which continued up to 23.07.2015. He was found unfit for Technician-II/Boiler Maker (certificate dated 20.01.2015), was merely recommended (not appointed) for Running Room Cook and Dresser on 02.12.2015, and was redeployed as Clerk-cum-Typist only on 14.10.2016, joining on 28.10.2016. The respondents ordered recovery of Rs.3,95,188/- (monthly installments of Rs.7,432/-) for 23.07.2015–28.10.2016 on the plea that the supernumerary post had not been extended; the Central Administrative Tribunal, Chandigarh Bench (order dated 20.11.2020) declined his claim. The High Court held that under Section 47 of the 1995 Act an employee who acquires disability during service cannot be dispensed with or reduced in rank and, if unsuitable for the post, is to be shifted or kept on a supernumerary post until a suitable post is available or superannuation; continuing the supernumerary post until adjustment (upto 28.10.2016) was the respondents' own obligation, and no prejudice can be caused to an employee disabled while performing duties — withdrawal of salary already paid being beyond the respondents' jurisdiction. Writ allowed; impugned orders set aside; recovery set aside; refund of any amount already recovered within eight weeks.

210 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CWP-570-2021 (O&M) Date of decisi o n: 18.08.2025

Sudhir Pal ……Petitioner

v s

Union of Indi a and others …Respondents

CORAM: HON’BLE MR. JUSTICE HARSIMRAN SINGH SETHI HON’BLE MR. JUSTICE VIKAS SURI

Present: M r.Sandeep Siwatch, Advocate f o r the petitioner

M r. Anil Chawla, Advocate f o r the respondents

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HARSIMRAN SINGH SETHI, J. (Oral)

I n the present petition, the ch a llenge is to the order date d 05.05.2019 p a ssed by the respondents fo r effecting recovery from th e petitioner for the period starting from 23. 0 7.2015 to 28.10.2016, on th e ground that n o supernumerary post could be created to adjust the petitioner , who had beco m e incapacitated to perform the duties of the post, on which, h e was substanti a lly appointed i.e. Assistant Loc o Pilot. Further, challenge is t o the order dat e d 20.11.2020, passed by the C entral Administrative Tribunal , Chandigarh B e nch, a copy of which has been a ppended as Annexure P-1, vid e which, the sai d claim raised by the petitioner h as been declined.

Learned counsel for the petiti o ner argued that initially, th e petitioner was appointed as Assistant Loco Pi l ot, but he was declared unfit fo r MOHAN LAL BIMBRA category A-1 a nd A-2 and was medically deca t egorised on 21.10.2010 and by 2025.08.22 10:16 I attest to the accuracy and integrity of this document

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declaring him fit for category A-3 from 09. 1 1.2010, he was not allowed t o work but he w as drawing salary against a s u pernumerary post of Assistan t Loco Pilot. T h ereafter, the petitioner was d e clared suitable for the post o f Technician-II/Boiler Maker in Mech/Loco D epartment on 21.07.2014 bu t again, he was found unfit to discharge the du t ies even on the said post as pe r Certificate da t ed 20.01.2015. The petitioner w as again recommended for th e alternative po s t as Running Room Cool and Dresser on 02.12.2015, but th e respondent su b mits that the petitioner did not j oin the said post and ultimately , he was redep l oyed as Clerk-cum-Typist on 14.10.2016, on which post, h e joined on 28.10.2016.

Learned counsel for the petitione r further submits that though, til l his redeploym e nt as Clerk-cum-Typist on 14. 1 0.2016, on which post he joine d on 28.10.201 6 . The petitioner was given sala r y for the post of Assistant Loc o Pilot, but the s ame was sought to be recover e d on the ground that from 201 5 onwards, the s upernumerary post of Assistan t Loco Pilot, which was create d so that the pe t itioner could draw salary, was not extended and, therefore, til l his redeploy m ent as Clerk-cum-Typist on 14.10.2016, wherein he joined o n 28.10.2016, n o salary could have been paid t o the petitioner, hence, for th e period startin g from 23.07.2015 to 28.10.2016, the salary paid to the petitione r was beyond h i s entitlement and recovery of R s.3,95,188/- was ordered upo n monthly installment of Rs.7,432/-, payable by the petitioner.

Learned counsel submits that th e Original Application was file d by the petitio n er against the order of recovery, which was dismissed without

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considering t h e fact that once, the petitioner was a regular appointee to th e post of Assist a nt Loco Pilot, from which post, he was decategorised medicall y on 21.10.2010 and was only adjusted as Clerk - cum-Typist after a period of si x years, given t o him, salary for the intervening p eriod, when the supernumerar y post was disc o ntinued, cannot be withdrawn b y the respondents.

P e r contra, learned counsel fo r the respondents submits tha t though it is a matter of fact that the petitioner was medically decategorise d from the post of Assistant Loco Pilot in Octo b er 2010, but he was allowed t o continue agai n st the supernumerary post, peri o d of which post continued upt o 23.07.2015, b u t as the petitioner never joined t he post of Running Room Coo k and Dresser, w hich was offered to him and u ltimately joined as Clerk-cum - Typist on 28. 1 0.2016, hence the salary paid to the petitioner for the perio d starting from 23.07.2015 to 28.10.2016, till h e joined on the post of Clerk - cum-Typist, has rightly been withdrawn as h e did not perform the duties o f the post of As s istant Loco Pilot during that pe r iod and the supernumerary pos t was not exten d ed beyond 23.07.2015.

W e have heard the learned coun s el for the parties and have gon e the record wit h their able assistance.

A s per Section 47 of the Pe r sons with Disabilities (Equa l Opportunities Protection of Rights and Fu l l Participation) Act, 1995 (i n brevity ‘the 1 9 95 Act’), any person, who has b een declared medically unfit t o perform dutie s of a particular post, on which h e was appointed and has later

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on, either allo w ed to continue on the said post or be adjusted in any other post , and such em p loyee is allowed to continue u pto the date of superannuatio n without causi n g any prejudice to him/her.

The relevant Section 47 of the 19 9 5 Act, thus, reads:-

“47. Non-discrimination in Government employment:-

( 1) No establishment shall d i spense with, or reduce in rank, an employee who ac q uires a disability during his service:

Provided that, if an emplo y ee, after acquiring disability is not suitable for the pos t he was holding, could be shifted to some other post w ith the same pay scale and service benefits:

Provided further that if it i s 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 su p erannuation, whichever is earlier.

( 2) No promotion shall be denied to a person merely on the ground of his disability:

Provided that the appropri a te Government may, having regard to the type of work carried on in any establishment, by notific a tion and subject to such conditions, if any, as m ay be specified in such notification, exempt an y establishment from the provisions of this section”.

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I n the present case, in the year 2 0 10, the petitioner was declare d medically unf i t and rightly a supernumerary p ost was created in his favour s o as to allow h i m to draw salary, which peri o d continued up to 23.07.2015 , thereafter, th e period qua supernumerary p o st was not extended and th e petitioner wa s not adjusted in any post until 14.10.2016, on which date, h e was redeploy e d as Clerk-cum-Typist, in w h ich post he actually joined o n 28.10.2016. T he arguments of the respond e nts that the petitioner did no t perform any d uties from 23.07.2015 upto 28. 1 0.2016 of Assistant Loco Pilot , cannot be tak e n as a ground to recover the sal a ry paid to him, especially whe n on the said po s t, on which, he had been appoi n ted, he was declared medicall y unfit for carr y ing out the duties of the said post. However, it was for th e respondents t o continue the supernumerary post until the petitioner wa s adjusted on a n y post i.e. upto 28.10.2016, rat h er, the respondents in, their ow n wisdom, did not continue the supernumerary p ost beyond 23.07.2015, but it i s a matter of fact that the petitioner was paid s alary continuously for the sai d period without any default. It is only therea f ter, the respondents decided t o withdraw the salary for the period starting f rom 23.07.2015 to 28.10.2016 . The said act o n the part of the respondents is incorrect. As per the 1995 Act , no prejudice c a n be caused to a disable emplo y ee, who became disabled whil e performing hi s /her duties. Hence, withdrawin g of salary after paying the sam e to the petitio n er, who became disabled duri n g performance of his duties, i s beyond the ju r isdiction of the respondents.

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The learned Central Administ r ative Tribunal has failed t o appreciate the said fact that the reason give n by the respondents, which ha s been taken as a ground by the Tribunal, to d e ny his claim, that the petitione r was not perfo r ming the duties of any post after 23.07.2015, which is when th e supernumerar y post was discontinued. Onc e under Section 47 of the 199 5 Act, petitione r is entitled to get the same salar y after being declared medicall y unfit, which s a lary was paid, same could not be withdrawn and, that too, o n the ground t h at supernumerary post was no t extended beyond 23.07.2015 , which act is a t tributable to the respondents on l y.

I t may be noticed that nothing h a s come on record to show tha t the petitioner w as appointed on any post after being disabled. Qua the post o f Technician-II/Boiler Maker in Mech/Loco Department, he was declare d unsuitable. F o r the post of Running Room C ook and Dresser, nothing ha s come on rec o rd to show that he was a p pointed as there was only a recommendation for the petitioner to join in t he said post. The redeploymen t has only been given for the post of Clerk-cum - Typist on 14.10.2016, on whic h post, he did n o t join upto 28.10.2016. Henc e , the petitioner remained in jo b with the resp o ndents continuously, entitling him for salary of the post, o n which he wa s working at the time when he became disabled i.e . Assistan t Loco Pilot, w h ich was rightly paid and cannot be withdrawn.

K eeping in view the totality o f the circumstances, petition i s allowed and t h e impugned orders are set asi d e and the recovery, which ha s been effected t o be made from the petitioner, i s contrary to the provisions of

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the 1995 Act, keeping in view the peculiar facts and circumstances of th e present case. Hence, the said order of recov e ry of salary for the period fro m 23.07.2015 to 28.10.2016 from the petitione r by treating him that he is no t entitled for a n y salary for the period in q u estion on any of the post, i s incorrect and cannot be accepted and the s a me is set aside. Any recover y already made from the petitioner be refunded to him within a period of eigh t weeks from the date of receipt of a certified c o py of this order.

(HARSIMRAN SINGH SETHI) JUDGE

(VIKAS SURI) JUDGE

August 18, 20 2 5 mohan bimbra

W hether speaking/reasons: Yes/No W hether reportable : Yes/No