DEVKI NANDAN Vs. UNION OF INDIA

JUDGEMENT

(1.) RULE. Heard forthwith.

(2.) ON 8th June, 2004 also last opportunity of three weeks was granted to the respondent to file a reply with a clear understanding that no further adjournment will be granted and the matter will be heard and disposed off.

(3.) THE present petition has been filed by the petitioner through his power of attorney. The petitioner was employed with respondents as Medical Officer since 26-8-1974. In the course of his employment he has served at various places. The last posting was as Port Health Officer, Mumbai. It is the case of the petitioner that he has been suffering from Rheumatoid Arthritis since last 20 years due to which he had to undergo five major joint replacement operations which are set out in paragraph 5 of the petition. In February, 2002, he underwent a Coronary Artery Heart By-pass Surgery and was under medical treatment for two months. In July, 2002 he fractured his Ilium bone involving the right hip joint and was hospitalized for the same for four days. The doctor whose opinion was sought arrived at the conclusion that the petitioner had developed Cervical Neuropathy with Secondary Cot Compression of the nerve root. It was also concluded that surgery could only help the petitioner but surgery was not possible in the petitioner's case as anaesthesia could not be administered to the petitioner due to his weak heart condition. In March, 2003, the petitioner started developing a pain in his neck and thereafter he started experiencing paraplegia in his hands. Therefore, he consulted his cardiologist Dr. Eric Borges who then referred him to a neuro-surgeon, Dr. S. N. Bhagwati. After complete investigation, it was concluded that the petitioner had developed Cervical Neuropathy with Secondary Cot Compression of the nerve root. It was also concluded that surgery could only help the petitioner but surgery was not possible in the petitioner's case as anaesthesia could not be administered to the petitioner due to his weak heart condition. The petitioner further states that slowly and gradually the cot compression as mentioned above increased and now he has been completely bed-riden since may, 2003. Therefore, the petitioner applied for leave from 14th May, 2003 and was trying to find a treatment for his medical condition for which he consulted various Doctors and Medical Experts. It was finally concluded by all Doctors that no line of treatment can be carried out. The petitioner has been therefore, medically incapacitated for carrying out any work. The petitioner had leave to his credit which was almost exhausted and as such he was compelled to avail 180 days of his accumulated earned leave from 29th August, 2003. The petitioner states that therefore, he made a representation to the respondent on 27-08-2003 inter alia praying that as per the ratio of the Delhi High Court in (Delhi Transport Corporation v. Rajbir Singh), 2002 (100) D. L. T. 111 (D. B.) which has interpreted the provisions of section 47 of the Persons with Disabilities (Equal Opportunities etc.) Act, 1995. (Hereinafter referred to as Disabilities Act) that he be given the benefit under the disabilities Act. The petitioner also stated that he was under treatment of Dr. T. Sreedhar who had certified his condition. He thereafter represented to the respondent by several letters to the respondent for a speedy reply to his representation and for extension of his earned leave to facilitate payment of his salary. The petitioner was called upon by the respondents by letter dated 23-12-2003 to approach the All India Institute of Physical Medical and Rehabilitation, Mumbai to enable the Medical Board to examine the extent of the disability of the petitioner. Despite his medical condition, the petitioner remained present before the Medical Board on 30-12-2003 for examination in accordance with the above said notice dated 23-12-2003. The petitioner had to travel to the said board in an ambulance since no other means of transport could be used for him. The Medical Board examine him and sent their report to the respondents. The petitioner does not have a copy of the said report but is given to understand that the Medical Board once again certified the disability of the petitioner. The petitioner states that on account of the fact that his leave was not sanctioned on time, he has not been paid his salary from December, 2003 till date inspite of the fact that he is fully entitled to the same. The petitioner further states that his condition was worsened both physically and financially. He was also compelled to surrender the accommodation given to him with his services. Therefore, on 27-2-2003, the petitioner surrendered the official accommodation and shifted to his own accommodation and is at present residing at the address mentioned in the cause title. There is also claim for promotion which we do not propose to consider considering that it is the case of the petitioner himself, that he is totally incapacitated and unable to move. In the case of promotion, whether it be by merit cum seniority or even in a case of seniority cum fitness, the candidate must be fit to be considered for promotion. The respondent by letter dated 27-3-2004 had intimated to him that his representation was considered sympathetically but could not be granted on account of the 100% disability (as mentioned in the medical report) of the petitioner and that he can be asked to apply for invalid pension as per Rule, 38 of the Pension Rules. It is this order which has been challenged by the petitioner contending that this will be contrary to the provisions of section 47 of the Disabilities Act.