The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.39163 of 2021 Harish Chandra Patra …. Petitioner Mr. Chittaranjan Pattnaik, Advocate State of Odisha & others …. Opposite Parties -versus-
Decision
CORAM: HON’BLE MR. JUSTICE MURAHARI SRI RAMAN ORDER 09.07.2024 This matter is taken up through Hybrid Mode. 2. Mr. Chittaranjan Pattnaik, learned counsel for the petitioner submitted the petitioner, who was initially appointed as a Dak Runner in the Karanjia Division Office on 19.12.1986, was promoted to the post of Forest Guard on 26.02.1997. The petitioner while performing his official duty met with an accident on 13.08.2015 and got severe injury on his body, right leg and right hand. Owing to such accident, his right leg and hand received serious injury, i.e., Traumatic fracture femur with shortening of right lower limb. Mr. Pattnaik, learned counsel further submitted that the petitioner was issued with a Disability certificate by the Medical Authority, Mayurbhanj assessing his disability at 45% (permanent) as per the guidelines for the purpose of assessing the extent of specified disability in a person under the Rights of Persons with Disabilities Act, 2016. The authorities having denied him Page 1 of 5 promotion to the post of Forester, the petitioner has approached this Court by filing this writ petition. Mr. C.R. Pattnaik, learned counsel for the petitioner drawing attention of this Court to Section 20 of the Rights of Persons with Disabilities Act, 2016, submitted that no promotion can be denied to a person merely on the ground of disability. He further submitted that if the petitioner is disabled and certified as having permanent disability under the aforesaid Act, in the event, competent authority finds him not suitable for the post of Forester, he could be posted in some other post with the same pay scale and extended service benefits. In this regard, he has referred to sub-sections (3) and (4) of Section 20 of the Rights of Persons with Disabilities Act, 2016, which reads as thus:- “20. Non-discrimination in employment – (1) Xxxxxxx xxxxxxx (2) Xxxxxxx xxxxxxx (3) No promotion shall be denied to a person merely on the ground of disability. (4) No Government establishment shall dispense with or reduce in rank, an employee who acquires a disability during his or her service: 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. 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.” Mr. C.R. Pattnaik, learned counsel for the petitioner has also drawn notice of this Court to the Office Memorandum Page 2 of 5 No.36012/1/2020-Estt.(Res.-II) dated 17.05.2022 issued by the Government of India, relevant portion of which reads as thus:- is available or he attains “4. No denial of promotion merely on the ground of disability In terms of Section 20(3) of the Rights of Persons 4.1. with Disabilities Act, 2016, no promotion shall be denied to a person merely on the ground of disability. Further, in terms of Section 20(4) of the Act, no Government establishment shall dispense with or reduce in rank an employee who acquires a disability during his/her service. As per the proviso to this sub- section, 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. This section further provides that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable the age of post superannuation, whichever is earlier. However, in case the PwBDs for whom the supernumerary post was created is eligible for next promotion to higher pay level, and it is not possible to adjust the employee against any post, a fresh creation of supernumerary level will be required by post surrendering the previously created supernumerary post at the lower level, and the proposal for the same may be submitted to the Department of Expenditure. 4.2. An employee who acquires disability, after entering into service, will be entitled to get the benefit of reservation in promotion as a PwBD. However, his seniority among PwBDs will be counted from the date of certification of his/her disability, i.e., disability of 40% or more in the categories covered under Section 34(1) of the Rights of Persons with Disabilities Act, 2016. 4.3. No benefit of reservation shall be given on the basis of temporary certificate of disability.” in next higher Page 3 of 5 Mr. C.R. Pattnaik, learned counsel for the petitioner has also drawn attention of this Court to Annexure-5, which is a Tentative common Gradation-cum-Seniority List of Forest Guards of Baripada prepared by the Divisional Forest Officer, Rairangpur Division in the year 2021, wherein at Sl.No.10 the name of the petitioner finds place showing that he is a trained personnel in the category of Scheduled Caste and he would be eligible to get the promotion at the first instance under reserved category. He further submitted that the denial of promotion to the petitioner by the authorities concerned is not justified in view of the aforesaid position in law as well as on facts. 3. On the earlier occasion, the learned counsel for the State sought time to obtain instruction as to whether the petitioner can be accommodated in any other post having identical scale of pay of Forester. 4. It is conceded by the learned counsel for the parties that the petitioner is due to retire on attaining the age of superannuation on 31.07.2024. 5. Today, when this matter is taken up, Ms. Saswata Pattnaik, learned Additional Government Advocate appearing for the opposite parties-State, on instruction, submitted that one post of Forester (Enforcement) is lying vacant in Rairangpur Forest Division and the petitioner can be accommodated in the said post. 6. In view of the aforesaid position, this Court taking a considered view, directs opposite party no.4, Director, Similpal Tiger Reserve-cum-Regional Chief Conservator of Forests, Baripada, Mayurbhanj to take a pragmatic view of the matter and Page 4 of 5 consider the case of the petitioner for promotion to the post of Forester (Enforcement) in Rairangpur Forest Division as expeditiously as possible keeping in view that he is likely to retire on attaining the age of superannuation on 31.07.2024. 7. Needless to say, while taking a decision for promotion of the petitioner to the post of Forester (Enforcement) in Rairangpur Forest Division, Office Order No.4224/2F dated 30.11.2021 under Annexure-6 shall not cause an impediment to opposite party no.4. 8. With the aforesaid observation and direction, this writ petition stands disposed of. (M.S. Raman) Judge MRS Signature Not Verified Digitally Signed Signed by: MANORANJAN SAMAL Designation: Personal Assistant Reason: Authentication Location: Orissa High Court, Cuttack Date: 09-Jul-2024 17:50:56 Page 5 of 5