In the Court of State Commissioner for
Persons with Disabilities
National
Capital Territory of Delhi
25-
D, Mata Sundari Road, Near Guru Nanak Eye Centre, New Delhi-2
Phone-011-23216002-04,
Telefax: 011-23216005,
[Vested with powers of Civil Court under the
Rights of Persons with Disabilities Act,
2016]
Case
No. 4/1733/2017-Wel./CD/1177-1178 Dated: 07.03.2019
In
the matter of:
Sh.
Karamvir Singh
R/o
2116, Type IV
Delhi
Administration Flats
Gulabi
Bagh, Delhi-110007 ……................
Petitioner
Versus
The
Director,
Directorate
of Education,
Old
Secretariat,
Delhi-110054 ...………...…Respondent
Date
of Order 26.02.2019
ORDER
The above named complainant,
a person with 90% locomotor disability vide his complaint dated 24.07.2017
submitted that he is working as PGT (Hindi) in Govt. Sarvodya Bal Vidyalaya,
Nangloi, Delhi. On 29.11.2016 he slipped
down in his village Bhaini Bharo, District Rohtak and suffered ligament injury
in his left shoulder and was not able to move it till the date of his fitness
for rejoining the work. The doctor at
Pt. B.D. Sharma, PGIMS, Rohtak advised him bed rest. He informed the Principal of his school vide
his letter dated 30.11.2016 for special disability leave for 2 weeks. The Principal sought clarification from Dy.
Director Education (DDE), West-B who declined to grant special disability leave
and stopped payment of his salary for the month of February, 2017. The complainant contended that DDE, West B
wrongly interpreted the CCS Leave Rules 1972 and have ignored the provisions of
OM no.18017/01/2014-Estt. (L) dated 25.02.2015. Para 5 of the said OM provides that “Leave applied on medical certificate in
connection with disability should not be refused or revoked without reference
to a medical Authority, whose advice shall be binding. The ceiling on maximum permissible leave laid
down in rule 12 may not be applied to leave on medical certificate applied in
connection with the disability. He
further contended that para 2 & 3 of the OM also protect his rights which
is being denied to him by respondent no. 1 & 2 which is arbitrary and
illegal. The complainant requested that
the respondent may be summoned and directed to take corrective measures by
sanctioning special disability leave to him.
2. The
complaint was taken up with the respondent vide notice dated 29.09.2017
followed by reminder dated 03.11.2017. DDE, West-B vide communication dated
16.11.2017 informed the complainant that his case file was forwarded to the
Competent Authority who also rejected the request and upheld the decision of
the District Authority in light of Rule 12.
The matter was again examined at District Level in light of the Rule 12
of Rules which deal with special disability leave which provides that the
special disability leave is admissible to all the employees “when disabled by
injury intentionally or accidently inflicted or caused in, or in consequence of
the due performance of official duties or in consequence of official position”.
3. The
complainant in his rejoinder dated 20.11.2017 contended that his case was to be
considered under the provisions of Section 47 of Persons with Disabilities (Equal
Opportunity, Protection of Rights and Full Participation) Act, 1995 which
provides that no establishment shall dispense with or reduce in rank an
employee who acquires a disability during his service. DoPT’s OM no.18017/01/2014-Estt. (L) dated
25.02.2015 also clarifies that leave applied on medical certificate in
connection with disability should not be refused and Leave Rule and CCS Rule
12 would not apply in connection with
disabilities. If the leave had been debited
for the period after Govt. servant is declared in capacitated, the same shall
be remitted back into his /her leave account.
4. The
complainant also referred to an order dated 23.02.2015 of Commissioner for
Persons with Disabilities of Govt. of Haryana which was upheld by the Hon’ble
High Court. Accordingly, the complainant
claimed that he should be sanctioned disability leave for the period from 29.11.2016 to 06.03.2017.
5. DDE,
W-B vide letter dated 16.11.2017 contended that special disability leave is
admissible to all the employees when disabled by injury intentionally or
accidently inflicted or caused in or in consequence of the due performance of
official duties or in consequence of his official position. Therefore, since the injury was caused when
the complainant was at his home town and the injury was not in consequence of
his official position, the complainant was not entitled to special disability
leave.
6. Upon
considering the written submission of parties, and after hearing on 18.12.2017,
22.01.2018, 28.02.2018, DDE W-B with the approval of the Competent Authority
and the DoE passed a speaking order dated 28.04.2018. Relevant extracts of the order are as under:
“...Firstly, from a close perusal of para 2
above, it can be safely stated that the para is not about Special Disability
Leave. Rather, it is about ensuring safety of service and service conditions of
an employee who has acquired disability during service. This para nowhere
speaks about any special disability leave provisions for the employees. And his
is definitely not a case of termination of service or denial of promotion etc.
Therefore, applicant’s claim in r/o Disability Leave on the basis of para 2
above does not hold any merit. Para 5 of the O.M. mandates reference to a
medical authority.
Importantly,
Rules 44 & 45 of the CCS Leave Rules deal with Special Disability Leave.
Rule 44 is reproduced for a ready, reference herein under:
“44. Special Disability Leave for injury intentionally
inflicted:
1) The authority to grant leave may grant special
disability leave to a Government servant (whether permanent or temporary) who
is disabled by injury intentionally inflicted or caused in, or in consequence
of the due performance of his official position”.
From
the representation dated 07.03.2017 submitted by the applicant, it becomes
evidently clear that the injury was not intentionally inflicted on him nor was
it caused ‘in consequence of the due performance of his official duties’ as the
employee had gone to his native place Rohtak to attend the last rites of his
deceased mother when his foot slipped by chance, thus, causing ligament injury
to his left shoulder. Clearly, the applicant’s case does not fall in this
category.
Lastly, Rule 45 of the CCS
Leave Rules deals with accidental injuries (i.e. not inflicted intentionally).
For the clarity of the case, it is important to quote and properly appreciate
as to what Rule 45 says. It says:
“45.
Special Disability Leave for Accidental Injury:
(1)
The Provisions of Rules 44
shall apply also to a Government servant whether permanent or temporary, who is
disabled by injury accidentally incurred in, or in consequence of the due
performance of his official duties or in consequence of his official position,
or by illness incurred in the performance of any particular duty, which has the
effect of increasing his liability to illness or injury beyond the ordinary
risk attaching to the civil post which he holds”.
Here again the words to be
marked are “disabled by injury accidentally incurred in, or in consequence of,
the due performance of official duties or inconsequence of his official
position”. Needless to say that the applicant had not visited his native place
Rohtak in Official capacity nor did he get injured in consequence of performing
his official duty.
In
these circumstances, it can be safely concluded that the provision of special
disability leave in r/o an employee is for those cases wherein the injury is in
consequence of discharge of official duty, whereas in this case the employee
was in his home town for his personal obligation when he got his left shoulder
injured.
Now, therefore, the
undersigned is of the considered view that the applicant may apply for leave as
due/ eligible to him but his case does not merit grant of leave under
provisions of Special Disability Leave u/r 44 &45 of the CCL Leave Rules.
This
issue with prior approval of competent authority.
(JUHIAGGARWAL)
DDE (WEST-B)”
7. Thereafter
the complainant submitted that the DoE is harassing him by not granting him
special disability leave.
8. In
view of the fact that DoPT OM no.18017/01/2014-Estt. (L) dated 25.02.2015
specifically states that the leave applied on medical certificate ‘’in connection with disability” should
not be refused or revoked without reference to a Medical Authority, whose
advice shall be binding, the complainant was directed to submit documents
(report from medical authority) indicating the percentage of disability due to
the ligament injury of his left shoulder and that he was declared incapacitated
to join the duty because of that disability vide letter dated 12.06.2018. All India Institute of Medical Sciences, New
Delhi who had assessed his disability and issued disability certificate on
22.10.1990, was also requested that the assessment of disability of the
complainant due to injury of his shoulder may be done and to indicate the
percentage of disability due to said injury before taking a view to recommend
or otherwise his case for grant of special disability leave.
9. All
India Institute of Medical Sciences, New Delhi vide letter dated 06.11.2018
informed as under:
“The
disability due to multiligamental pathology of left shoulder without surgical
intervention is 18% (Eighteen Percent), when calculated in isolation without
any disability of any other part of the body.
However,
the patient is also suffering from Post Polio Residual Paralysis of Bilateral
Lower Limb. The disability when calculated together for bilateral lower limb
and shoulder is 90% (Ninety Percent) without any surgical intervention of his
shoulder.
Patient
has a limited ability due to weakness in bilateral lower limb as patient has to
use upper limb for daily living.”
10. The
following points raised by the complainant need to be addressed:
i)
Whether the complainant’s
case is covered under Section 47 of the Persons with Disabilities Act, 1995.
ii)
Whether the order of
Commissioner for Persons with Disabilities, Govt. of Haryana in the case of Sh.
Sameer Narula Vs. Punjab National Bank upheld by Hon’ble High Court of Punjab
and Haryana vide order dated 27.11.2015 is relevant to the complainant’s case.
iii)
Whether the complainant’s
case is covered under DoPT’s OM no.18017/01/2014-Estt. (L) dated 25.02.2015.
11. Section
47 of the Persons with Disabilities Act, 1995 provides as under:
47. (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.
12. The
above provision is apparently for cases in which a Govt. employee acquires a
disability during his/her
service that renders him/her unsuitable for the post he/she was holding. Section 47 is applicable irrespective of
whether the employee was performing any official duty or otherwise. It is very clear that nature/the severity of the
disability so acquired should be such that the employee concerned is not able
to perform the functions of the post he /she was holding. Sh. Sameer Narwal, whose case was before the
Commissioner for Persons with Disabilities, Haryana and Punjab & Haryana
High Court, was not paid his salary and allowances on the ground that he
acquired disability outside the duty hours and not during the course of his
duties.
13. Whereas
in the instant case, the nature or the extent of disability acquired by the
complainant as a consequence of the injury in his shoulder was not such as to
render him not suitable for the post of PGT (Hindi) that he was holding. The treating doctor only advised him bed rest
from 29.11.2016 to 06.03.2017 for a period of 98 days at the end of which he
was declared fit to join the duty.
AIIMS, New Delhi has certified that the extent of disability due to the
said injury is 18% which did not increase the overall percentage of disability
of the complainant which was 90%.
Therefore, Section 47 of PwD Act, 1995 is not applicable to the case of the
complaint, and the order of Hon’ble High Court of Punjab and Haryana is not
relevant to the facts of this case.
14. The
DoPT’s OM dated 25.02.2015 also provides that the leave on medical certificate
in connection with disability should not be debited from the account of govt.
servant and if the same has been debited, it should be remitted back into his/her
leave account. For this to happen, the
affected employee should have acquired disability and at the end of the
treatment, he/ she should be issued a certificate of disability, as provided in
CCS (Leave) Second Amendment Rules, 2018
notified vide GSR 438(E) dated 03.04.2018. The said amendment provides that the
Medical Authority for the purpose of special disability leave shall issue
certificate of disability in Form 3A and which, among other things, shall
recommend that the Govt. servant may be granted leave on medical ground. If it were not so, any Govt. employee who is
advised bed rest for any ailment and for any duration could claim special
disability leave, which certainly is not the intent of Section 47 of the
Persons with Disabilities Act, 1995 or CCS (Leave) Second Amendment Rules,
2018. Disability, as per clause (f a) of the Amendment Leave Rules, 2018 means “specified
disability” “benchmark disability” and “disability having high support needs”
as referred to in the Rights of Persons with Disability Act, 2016.
15. As
the complainant was incapacitated due to the injury in his shoulder and he
acquired 18% permanent disability due to the said injury, it is recommended
that the complainant’s request for grant of special disability leave should be
considered, if he produces the recommendation from the medical authority in Form
3A in term of DoPT’s OM no. 18017/1/2014-ESA(L) dated 25.02.2015 and consequent
amendment to CCS (Leave) Rules vide Notification dated 11.12.2018. It may be
noted that para 7 of DoPT’s OM dated 25.02.2015 mentioned that necessary
amendments to CCS (Leave) Rules, 1972 were being notified separately. Hence the
request of the complaint should not be rejected on the ground that the
amendment notification is dated 11.12.2018.
16. Action
taken report on the above mentioned recommendations be submitted to this Court
within three months from the date of receipt of this order as required under
Section 81 of the Act.
17. The
complaint is disposed off.
18. Given
under my hand and the seal of the Court this 07th day of March, 2019.
(T.D.
Dhariyal)
State
Commissioner for Persons with Disabilities
