1 2025:CGHC:8263-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WA No. 661 of 2022 Deceased Kiran Rathi, through LR’s 1. Ramesh Kumar Rathi S/o Late Bansilal Rathi Aged About 66 Years R/o R-3/9 Rama Valley Bodri Bilaspur District - Bilaspur (C.G.) 2. Priyank Rathi S/o Shri Ramesh Kumar Rathi Aged About 31 Years R/o R-3/9 Rama Valley Bodri Bilaspur District - Bilaspur (C.G.) 3. Priyanka Mishra W/o Vinayak Mishra Aged About 36 Years R/o D - 11/6 FF DLF Exclusive Floors DLF Phase 5, Gurgaon Haryana 122003. 4. Shruti Kabra W/o Shrikant Kabra Aged About 38 Years R/o D- 157, 3rd Floor Baal Udhyan Road Uttam Nagar West Delhi Delhi Pin 110059. ... Appellant(s) Versus 1. State of Chhattisgarh Through Secretary, Department of Law And Legislative Affairs, Mantralaya Mahanadi Bhawan, Atal Nagar, Naya Raipur, District : Raipur, Chhattisgarh. 2. The Joint Director Treasury Account And Pension, Raipur, Chhattisgarh. 3. The District And Session Judge District Raipur, Chhattisgarh. 4. The High Court of Chhattisgarh Through Registrar General, High Court of Chhattisgarh, Bilaspur, Chhattisgarh. ... Respondent(s) 2 For Appellant : Mr. Rajeev Shrivastava, Senior Advocate with Mr. Sourabh Dangi, Advocate. For Respondents No. 1 & 2 / State : Mr. Sangharsh Pandey, Government Advocate For Respondent No. 3 & 4 Mr. Ranbir Singh Marhas, Advocate. Date of Hearing : 23.01.2025 Date of Judgment : 18.02.2025 Hon'ble Mr. Ramesh Sinha, Chief Justice Hon'ble Mr. Ravindra Kumar Agrawal, Judge C.A.V. Judgment Per Ramesh Sinha , Chief Justice 1. Heard Mr. Rajeev Shrivastava, learned Senior Advocate assisted by Mr. Saurabh Dangi, learned counsel for the appellant(s)/writ petitioner. Also heard Mr. Sangharsh Pandey, learned Government Advocate for the State/respondents No. 1 and 2 as well as Mr. Ranbir Singh Marhas, learned counsel for the respondent No. 3 & 4. 2. Challenge in this appeal is to the order dated 14.10.2022 passed by the learned Single Judge in WPS No. 5026/2020 whereby the petition filed by the original writ petitioner-Kiran Rathi, claiming the arrears of salary for the period from 01.07.2010 till 30.08.2016 and promotions with consequential service benefits , allowances as applicable to a judicial ofÏcer and encashment of earned leave which could have been accumulated during the said period in lieu of Section 47 of the Persons With Disabilities (Equal Opportunities, Protection and Rights of Full Participation) Act, 1995 (for short, the Act of 1995), has been rejected. 3. 3. The facts, in brief, as projected by the appellant-writ petitioner is that the writ petitioner-Kiran Rathi joined the Chhattisgarh Lower Judicial Services on 3 18.01.2006, vide order dated 19.01.2006 was appointed as Civil Judge, Class II and posted as IIIrd Civil Judge, Class II, Raigarh. In the intervening night of 27/28.03.2010, the petitioner has suffered hypoxic brain damage due to shortage of oxygen supply to her brain during the cardiac arrest and since then she has become unconscious. During the course of her leave, videorder dated 09.07.2013, she was granted sumptuary allowance and medical allowance. On 02.11.2015, a Medical Board was constituted for physical examination of the petitioner. Thereafter, she was served with an invalidation order dated 30.08.2016 issued by the Principal Secretary, Department of Law and Legislative Affairs, Government of Chhattisgarh and her services were invalidated under Rule 18(2) (a) of the Chhattisgarh Civil Services (Leave) Rules 2010 (for short, “the Rules 2010) without any provision whatsoever for pensionary benefits, arrears of salary (back-wages), allowances and other service benefits etc., which the petitioner claimed to be lawfully entitled to get as per Section 47 of the Act of 1995. The petitioner’s husband preferred representations and reminders to the High Court of Chhattisgarh for grant of leave salary, invalid pension, gratuity and other retiral benefits. Vide order dated 27.07.2019, the Law and Legislative Affairs Department issued an order sanctioning extraordinary leave to the petitioner for a period from 02.06.2010 till 29.08.2016. Being aggrieved by non grant of other monetary benefits, the writ petitioner filed WPS No. 5026/2020 which was dismissed vide order dated 10.10.2022. 4. During pendency of this appeal, the sole writ petitioner expired and vide order dated 03.12.2024, the legal representatives (for short, the LRs) of the writ petitioner were brought on record and now the appeal is being pursued by her LRs. 5. Mr. Rajeev Shrivastava, learned Senior Advocate appearing for the appellants would submit that the original writ petitioner was a 100% disabled 4 person, in comatose, completely bed ridden, unconscious and incontinent since intervening night of 27-28.03.2010. She suffered a cardiac arrest in the intervening night of 27-28.03.2010 and due to shortage of supply of oxygen to her brain during cardiac arrest, the maximum portion of her brain tissues were damaged (hypoxic brain damage) irreparably and since that night till today the Petitioner has been in coma with her position being irreversible. The writ petitioner was a disabled person within the meaning of section 2(s) of the Rights of Persons with Disabilities Act, 2016 (for short, the Act of 2016) and even under Section 2(r) read with Section 2(zc). The hypoxic brain damage of the writ petitioner which rendered her in comatose state since 2010, falls under Section 2(s) of Act of 2016 and the case of the writ petitioner is also covered under neurological disabilities/locomotor disability under the Schedule of specified disability i.e. Section 2(zc). The Medical Board constituted in 2016 to assess the condition of the writ petitioner has also stated hypoxic brain damage under the neurological disability head as the condition of the writ petitioner while holding her to be unfit for employment, yet the petitioner was wrongfully invalidated on the report of the Medical Board. Furthermore, during the pendency of the present appeal, even under Rule 18 of the Right of Persons With Disabilities Rules, 2017 (for short, the Rules of 2017), the writ petitioner has been held to be 100% disabled person since 13 years on account of her comatose state. Hence the writ petitioner was entitled to benefit of Section 20 of the Act of 2016 and she was required to be kept in a supernumerary post till her retirement and was required to be paid salary, ACP scale pay, promotions etc. 6. Mr. Shrivastava would further submit that the learned Single Judge has wrongly held the writ petitioner not entitled to benefits of the Act of 2016 as the initial appointment of the writ petitioner was not because of some disability and furthermore the disability of the writ petitioner has rendered her completely incapacitated and therefore she could not have carried out judicial work. He 5 would submit that initial appointment under the Act of 1995 or Act of 2016 is not a precondition for grant of benefits under Section 20 of the Act of 2016 and on the contrary it is a prerequisite for claiming benefit under Section 20 of the Act of 2016 that the disability must have been suffered during the course of employment. Also, on the count that the disability had rendered her completely incapacitated and therefore, the writ petitioner could not have carried out judicial work and could not have been kept in service, it is submitted that section 20(4) of Act of 2016 mandates keeping the employee in service in a supernumery post till retirement even if the employee cannot be kept working in the same post and it is not possible to adjust the said employee. In the instant case the writ petitioner had been in comatose state for past 13 years and had also been issued a 100% disability certificate to that effect. Therefore the provisions of Act of 2016 more specifically Section 20 was applicable and appellant/writ petitioner could neither have been removed from service, nor she could have been denied salary during her illness and promotions etc on ground of her disability. 7. In support of his contentions, Mr. Shrivastava would rely upon the judgments of the Apex Court in Vikash Kumar v. UPSC & Others (2021) 5 SCC 370, Ravinder Kumar Dhariwal & Another v. Union of India & Others {2021 SCCOnLine SC 1293}, Kunal Singh v. Union of India & Another (2003) 4 SCC 524, Bhagwan Das & Another v. Punjab State Electricity Board (2008) 1 SCC 579, Anil Kumar Mahajan v. Union of India & Others (2013) 7 SCC 243, decision of High Court of Andhra Pradesh in M. Vekateswarlu v. Andhra Pradesh State Road Transport Corporation {2016 SCC OnLine Hyd 13}, decision of Madras High Court in V. Palani v. Metropolitan Transport Corporation (Chennai) Ltd. {2014 SCC OnLine Mad 1300}, decision of Punjab & Haryana High Court in Parvesh Devi v. State of Haryana & Others {CWP No. 5715 of 2005}. 6 8. On the other hand, Mr. Sangharsh Pandey, learned Government Advocate appearing for the State/respondents No. 1 and 2 as well as Mr. R.S.Marhas, learned counsel appearing for the respondents No. 3 and 4 placing reliance on the return filed to the writ petition, would support the order passed by the learned Single Judge and submit that the appellants are not entitled to any relief whatsoever claimed in this appeal and this appeal deserves to be dismissed. The order passed by the learned Single Judge is well founded and warrants no interference. 9. We have heard learned counsel for the parties, perused the pleadings and documents appended thereto. 10. It is not in dispute that the writ petitioner had been incapacitated because of hypoxic brain damage and she was unable to discharge the judicial work. Considering this aspect of the matter and after obtaining medical report the High Court has recommended the Government to invalidate the service of the writ petitioner. This is not the disputed fact between the writ petitioner and the respondents. Further, the ailing condition in which the writ petitioner was, does not make her disabled in any manner but she had become totally incapacitated to discharge the judicial work and as such, the writ petitioner was not entitled to any relief whatsoever as her incapacity does not fall under any category as defined under the Act of 2016 or Act of 1995. Hence, the judgments referred to by the learned counsel for the appellant are of no help in the present case. The learned Single Judge has rightly taken note of paragraph 18 and 19 of the decision of the Apex Court in Nawal Kishore Sharma v. Union of India & Others {AIR 2021 SC 886}. Hypoxic brain damage is the condition which does not fall within the ambit of either Act of 1995 or 2016. It is neither a specified disability nor is the same relatable to the broad spectrum of impairments which hinders her full and effective participation in society, and as such, the learned Single Judge has rightly dismissed the claim of the writ petitioner. 7 11. We concur with the findings and reasoning given by the learned Single Judge and this appeal being devoid of merit, is accordingly dismissed. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) JUDGE CHIEF JUSTICE Amit AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.02.18 18:22:04 +0530