If Disability Is Acquired During Service, Employee Must Be Shifted To Suitable Post Instead Of Termination: Allahabad High Court

The Allahabad High Court has held that where disability is acquired during the course of the service, instead of dispensing the services of the employee, he/she must be shifted to a suitable post.Referring to Section 20 [Non-discrimination in employment] of the Rights of Persons with Disabilities Act, 2016 Justice Abdul Moin held that “From perusal of the provisions of the Act, 2016 it is apparent that where an employee acquires a disability during his service, his services are not to be dispensed with rather efforts are to be made by the employer for shifting him to a suitable post and in the absence thereto, to continue him on supernumerary post until a suitable post is available.”Petitioner was appointed as an Assistant Teacher in 2013, after which he suffered a brain stroke on 02.08.2016. This rendered him unable to carry out his duties. On 20.08.2024, he attempted to rejoin service but was not permitted.Meanwhile, the respondents formed a committee to examine his case. As per said committee, the petitioner was unable to execute teaching work on account of not being able to write or speak due to which he could not be permitted to join.Counsel for the petitioner argued that the petitioner be considered for appointment on an equivalent post due to benefits flowing out of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and Rights of Persons with Disabilities Act, 2016Per contra, counsel for respondents contended that petitioner made representation on 30.08.2024, after absence for 3 years, from 01.10.2021, which was rejected due to him having absented himself. It was further contended that as per committee report, the petitioner was found unfit to carry on teaching work, due to which he could not be permitted to join.The Court noted that no medical board was constituted to examine the petitioner's case despite documents having been annexed showing a brain stroke.The Court observed that under Section 20(4) of 2016 Act, no government employee who acquired disability during service could be dispensed with. As per the proviso, if the employee after acquiring disability is not suited to his post, he shall be shifted to some other post with the same pay scale and benefits. The second proviso states that if no other post is available, the employee can be kept on a supernumerary post until such post becomes available or superannuation, whichever is earlier.Referring to the decision of the Supreme Court in Ch. Joseph vs. The Telangana State Road Transport Corporation & Other at length, the Court emphasized that when disability is acquired during course of service, the legal framework must respond with adjustment, not exclusion. The Court observed that although no medical board was formed, a senior physician was sent to evaluate the petitioner, who formed part of the committee. Along with the physician, other members of the committee opined that the petitioner was not fit for teaching work. The Court held that in view of Ch. Joseph, alternative post has to be identified for the petitioner.Accordingly, the Court directed the DIOS, Barabanki to act in consonance with the Act and Ch. Joseph and find a suitable post for the petitioner, failing which he be kept at a supernumerary post until such post is available or till superannuation, whichever earlier. It was further held that the period from the date of absence of the petitioner to the order being passed by the DIOS was to be regularized by the respondents as per Rules.Case Title: Laljee Versus State Of U.P. Thru. Prin. Secy. Secondary Education Lko And 6 Others [WRIT - A No. - 7815 of 2024]Click Here To Read/Download Order

If Disability Is Acquired During Service, Employee Must Be Shifted To Suitable Post Instead Of Termination: Allahabad High Court

Upasna Agrawal

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