2026:HHC:23647 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWPOA No.151 of 2019 Decided on: 19 th June, 2026 __________________________________________________________________ Vijay Kumar ...Petitioner Versus State of H.P. and others ...Respondents _________________________________________________________________ Coram Hon'ble Mr. Justice Jiya Lal Bhardwaj, Judge Whether approved for reporting? 1 Yes For the petitioner: Mr. P.P. Chauhan, Advocate. For the respondents: Mr. Sumit Sharma, Deputy Advocate General. Jiya Lal Bhardwaj, Judge (Oral) The petitioner by way of present writ petition has prayed for the following substantive reliefs:- “a) to issue a writ of certiorari or direction in nature thereof, quashing the impugned order dated 23/02/2011 (Annexure P-23) and 30/03/2011 (Annexure P-26) of the writ petition, as unconstitutional and illegal and contrary to the law; b) to issue a writ of mandamus, appropriate writ, order or direction in nature thereof, directing the respondents to reinstate the petitioner in service with effect from 17/08/2000 with all the consequential benefits including arrears of salary with an interest @18% pa;” 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes 2 2. The facts as emerge from the pleadings are that the petitioner was appointed as a Constable in the Police Department on 04.11.1988. After joining the service, he started developing first ever symptoms of mental illness and underwent treatment at Indira Gandhi Medical College Shimla in the year 1992. During the service, he was even awarded a commendation certificate dated 24.01.1996 (Annexure A-17), by respondent No.4. However, subsequently, his services were terminated vide order dated 17.08.2000 (Annexure A-9). The petitioner feeling aggrieved by the said order passed by respondent No.4, preferred an appeal before respondent No.3, who vide order dated 03.02.2001 (Annexure A-11) dismissed the same. 3. The petitioner feeling aggrieved by the dismissal of his appeal, preferred a petition bearing CWP(T) No.8474 of 2008, titled, Vijay Kumar versus State of HP and others, which came to be disposed of on 22.03.2010 (Annexure P-19). The Court had quashed the order dated 03.02.2001 (Annexure 3 A-11), passed by respondent No.3, holding that the appellate authority, while considering the appeal preferred by the petitioner had overlooked the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short “the Act”) and instructions dated 02.08.1999 (Annexure A-18) and directed respondent No.3 to consider the appeal preferred by the petitioner afresh in view of the provisions contained in the Act and the instructions issued on 02.08.1999 within a period of 10 weeks. 4. Pursuant to the decision passed by the Court, respondent No.3 passed an order on 23.04.2010 (Annexure P-21), whereby the order dated 17.08.2000 passed by respondent No.4, was quashed and the petitioner was reinstated in service with immediate effect. It was also observed that the provisions of the Act provide that no employee can be dismissed from service, if he acquires a disability during the course of his employment. The petitioner had been enrolled as a Constable in the year 1988 and during 4 the course of his employment, became mentally sick and, therefore, the order of dismissal was not in consonance with the above provisions of the Act. However, the period between the order of dismissal i.e. 17.08.2000 till the date of reinstatement was ordered to be treated as duty period for pensionary benefits, but the petitioner was not held entitled to any salary on the principle of ’no work no pay’. 5. The petitioner feeling aggrieved by the denial of salary for the intervening period on the principle of ‘no work no pay’, preferred an appeal before respondent No.2. The said appeal was rejected vide order dated 23.02.2011 (Annexure P-23), wherein it was held that respondent No.3 had rightly denied the claim for salary for the period between the petitioner’s dismissal and reinstatement. It was observed that where a Government servant, who has been dismissed, is reinstated as a result of appeal or review, the authority competent to order reinstatement, shall consider and make specific order regarding the pay and allowances to be paid to 5 the Government servant for the period of his absence from duty. The authority can consider the enabling provisions and the relevant facts as to whether the employee should be denied the salary for the period between the date of dismissal and the date of reinstatement, keeping in view various factors. 6. Thereafter, respondent No.2 issued a show cause notice on 25.02.2011 (Annexure P-24) to the petitioner, as to why order dated 23.04.2010, passed by respondent No.3 is not set aside on the ground that the said authority while passing the order, has not appreciated the facts and law in the right perspective. It was also observed that the petitioner was discharged from service vide order dated 02.11.1989 under Rule 12.21 being unsuitable for the Police job and thereafter he was dismissed from service on 17.08.2000. As per the provision of Section 33 of the Act, the job in the Police Department has been exempted from the purview of the provisions of the Act, vide Notification No. Home(A)B(2)-26/05 6 dated 21.08.2007, keeping in view the fact that the Police have to discharge multifarious duties, ranging from handling of weapons and a person with mental illness cannot discharge the duties efficiently and sometimes it can be detrimental to the public at large. This fact has not been appreciated by respondent No.3, while reconsidering the appeal, and thus he does not agree with the order dated 23.04.2010, passed by respondent No.3 and asked the petitioner to submit his reply to the show-cause notice within a period of 10 days. 7. The petitioner replied to the show-cause notice, stating that as per the provision of Section 33 of the Act, the same is applicable prospectively and the same could not be taken into consideration for the period prior to the date, especially when he was dismissed from service on 17.08.2000 and Notification was not in existence. Instead of respondent No.2, who had issued show-cause notice to the petitioner, the order of dismissal of service w.e.f. 25.03.2001 has been 7 passed by respondent No.4, taking into account the provision of Section 33 of the Act, which is not applicable in the Police Department, as per the Notification dated 21.08.2007, issued by the State Government. 8. The petitioner feeling aggrieved by the order of denial of salary to him and also order of dismissal from service, has preferred the present petition inter alia on the grounds that the order of dismissal is illegal, arbitrary, mala fide, discriminatory, against the well established principles of natural justice as well as mandatory provisions of the Constitution of India. The action on the part of respondent No.4 to rest his decision on a Notification dated 21.08.2007, is pleaded to be wrong and illegal as the Notification relied upon is after the order of dismissal passed by the respondents. It has further been averred that denial of consequential benefits to the petitioner after his reinstatement was illegal and arbitrary and the petitioner was entitled to all the monetary as well as other consequential 8 benefits as a result of his reinstatement. 9. The respondents filed reply to the petition and supported their decision. It has been averred in the reply that the petitioner was enrolled as Constable in the Police Department w.e.f. 04.11.1988 and he was discharged from service vide office order dated 02.11.1989 under Rule 12.21 being unsuitable for the Police job. However, on appeal, he was reinstated in service w.e.f. 28.08.1991 and taken back in service from 12.06.1995. In the year 1988-89, the petitioner willfully absented from leave/duty, for which he was dealt with departmentally and the charges were proved against him and he was dismissed from service vide order dated 17.08.2000. The order of dismissal was upheld by the Appellate Authority. Against the order passed by the appellate authority, the petitioner had filed the petition, which was decided by this Court, with a direction to the appellate authority to decide the appeal afresh. Thereafter, respondent No.3 had ordered for reinstatement of the 9 petitioner vide order dated 23.04.2010. However, the period between order of dismissal i.e. 17.08.2000 to the date of re- instatement was ordered to be treated as duty period for pensionary benefits and the petitioner shall be paid nothing for this period on the principle of ‘no pay for no work‘. 10. Thereafter respondent No.2 had issued the show cause notice to the petitioner on 25.02.2011 as to why the order dated 23.04.2010 passed by respondent No.3 be not set-aside. It was observed that as per the service record of the petitioner, from the very beginning, he was careless, indisciplined and unwilling worker. Keeping in view the job of the Police Department, the establishment of Sub-Inspectors and Constables of the State Police Department have been exempted from the purview of the provisions of the Act vide Notification dated 21.08.2007. Since the order passed by respondent No.3 in the appeal was contrary to the provisions of law, the same was quashed and the services of the petitioner were dismissed w.e.f. 23.03.2011 as per order 10 dated 30.03.2011 passed by respondent No.4. 11. I have heard the learned counsel for the parties and also perused the record carefully. 12. It is not in dispute that the petitioner after his appointment as a Constable in the police department, had developed mental illness. The provisions of the Act, more particularly Section 47, clearly provides that no establishment shall dispense with, or reduce in rank an employee who acquires a disability during his service. The provisions of Section 47 of the Act are reproduced hereinbelow:- “47. Non-discrimination in Government employments.-(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: 11 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.” 13. A perusal of the above Section clearly reveals that no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service. 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. Further, if it is not possible to adjust the employee against any post, he/she may be kept on a supernumerary post until a suitable post is available or he/she attains the age of superannuation, whichever is earlier. 14. The provisions of the aforementioned Act have come into force w.e.f. 07.02.1996. The petitioner was appointed as a Constable on 04.11.1988. The plea taken by the respondents in the reply that as per Notification dated 12 21.08.2007 (Annexure P-28), Section 33 of the Act has been exempted to be made applicable in the establishment of Sub Inspectors and Constables of State Police Department. 15. In the present case, firstly, the petitioner was appointed as Constable on 04.11.1988, when he was fit and fine to hold the post. Even as per the provisions of Section 47 of the Act, if the person suffers disability during the service period, the employer cannot dispense with his services and once the petitioner has suffered the disability during his service period, the respondents could not have passed the order to dismiss his services initially on 17.08.2000 and thereafter on 30.03.2011. 16. In the petition instituted by the petitioner, this Court had specifically directed the appellate authority that the provisions of the Act has been overlooked and on that ground, the order earlier passed by the said authority, dismissing the appeal against the dismissal order on 03.02.2001, was quashed with a direction to consider the 13 appeal afresh, especially keeping in view the facts as well as the instructions dated 02.08.1999. As per the instructions dated 02.08.1999, issued by the State of Himachal Pradesh, the provisions of Section 47 of the Act have been made applicable and followed by the State Government. 17. The Notification dated 21.08.2007 was not in existence, when services of the petitioner were dismissed on 17.08.2000 and, therefore, the same cannot be made applicable for the simple reason that the petitioner was appointed much prior to the said Notification. The provisions of the Notification can be made applicable for the purpose of offering fresh appointments in the Police Department, but not to deal with employees, who are already appointed and further suffered disability during their service. Once the State Government had adopted the provisions of Section 47 of the Act, the impugned action on the part of the respondents to deny initially the salary to the petitioner and thereafter dismiss him from services, is not at all sustainable in the 14 eyes of law. The purpose of engrafting the Act was to ensure that the persons, who are disabled, are also provided the employment. Not only this, even in respect of those employees, who were appointed when they suffered no disability, but if subsequently some disability is suffered, their appointment cannot be annulled inasmuch as the services of such employees cannot be dispensed with. Once the legislature in its wisdom has clearly stipulated that if an employee suffers a disability during the service period, the employee has to be shifted to some other post with the same pay scale and service benefits and further, if it is not possible to adjust the employee against any post, the supernumerary post has to be created until a suitable post is available or he/she attains the age of superannuation, whichever is earlier, the very purpose of engrafting the said provision is negated, in case, the impugned orders passed by the respondents are not quashed and set aside. 18. Learned counsel for the petitioner has placed 15 reliance upon the judgment of the Hon’ble Supreme Court in Kunal Singh vs. Union of India and Another, (2003) 4 SCC 524, to contend that once there are safeguards provided to the persons with disability, enabling them to enjoy equal opportunities and full participation in national life, the impugned order passed by the respondents to dismiss his services is contrary to the said law propounded by the Hon’ble Supreme Court. The relevant paras of the judgment read as under:- “7. From the facts, which are not in dispute, it is clear that the disability suffered by the appellant is covered by Section 2(i)(v) read with Section 2(o) of the Act. It is also not in dispute that this disability was acquired by the appellant during his service. Under Section 2 "disability" and "person with disability" are separately defined and they are distinct. We may also notice some provisions in Chapter VI of the Act relating to employment. Section 32 deals with identification of posts which can be reserved for persons with disabilities. Section 33 speaks of reservation of such percentage of vacancies not less than 3% for persons or class of persons with disability of which 1% each shall be reserved for persons suffering from: (i) blindness or low vision; (ii) hearing impairment; and (iii) locomotor disability or cerebral palsy. Section 38 requires the appropriate Governments and local 16 authorities to formulate schemes for ensuring employment of persons with disabilities. Section 47 is included in Chapter VIII of the Act. Chapter VI deals with employment relating to persons with disabilities including identification of posts and reservation of vacancies for such persons. Under this Chapter, reservation of vacancies for persons with disabilities is made for initial appointments. Section 47 in Chapter VIII deals with an employee of an establishment who acquires a disability during his service. 8. The need for a comprehensive legislation for safeguarding the rights of persons with disabilities and enabling them to enjoy equal opportunities and to help them to fully participate in national life was felt for a long time. To realize objective that people with disabilities should have equal opportunities and keeping their hopes and aspirations in view a meeting called the 'Meet to Launch the Asian and Pacific Decades of Disabled Persons' was held in Beijing in the first week of December, 1992 by the Asian and Pacific countries to ensure 'full participation and equality of people with disabilities in the Asian and Pacific Regions'. This Meeting was held by the Economic and Social Commission for Asia and Pacific. A Proclamation was adopted in the said meeting. India was a signatory to the said Proclamation and they agreed to give effect to the same. Pursuant thereto this Act was enacted, which came into force on 1-1-1996. The Act provides some sort of succor to the disabled persons. 9. Chapter VI of the Act deals with employment relating to persons with disabilities, who are yet to secure employment. Section 47, which falls in Chapter VIII, deals with an employee, who is 17 already in service and acquires a disability during his service. It must be borne in mind that Section 2 of the Act has given distinct and different definitions of "disability" and "person with disability". It is well settled that in the same enactment if two distinct definitions are given defining a word/expression, they must be understood accordingly in terms of the definition. It must be remembered that person does not acquire or suffer disability by choice. An employee, who acquires disability during his service, is sought to be protected under Section 47 of the Act specifically. Such employee, acquiring disability, if not protected, would not only suffer himself, but possibly all those who depend on him would also suffer. The very frame and contents of Section 47 clearly indicate its mandatory nature. The very opening part of Section reads "no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service". The Section further provides 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; if it is not possible to adjust the employee against any post he will be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. Added to this no promotion shall be denied to a person merely on the ground of his disability as is evident from sub-section (2) of Section 47. Section 47 contains a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing a provision of social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, 18 protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of Section 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service. 10. The argument of the learned counsel for the respondent on the basis of definition given in Section 2(t) of the Act that benefit of Section 47 is not available to the appellant as he has suffered permanent invalidity cannot be accepted. Because, the appellant was an employee, who has acquired 'disability' within the meaning of Section 2(i) of the Act and not a person with disability. 11. We have to notice one more aspect in relation to the appellant getting invalidity pension as per Rule 38 of the CCS Pensions Rules. The Act is a special Legislation dealing with persons with disabilities to provide equal opportunities, protection of rights and full participation to them. It being a special enactment, doctrine of generalia specialibus non derogant would apply. Hence Rule 38 of the Central Civil Services (Pension) Rules cannot override Section 47 of the Act. Further Section 72 of the Act also supports the case of the appellant, which reads: - "72. Act to be in addition to and not in derogation of any other law. – The provisions of this Act, or the rules made thereunder shall be in addition to, and not in derogation of any other law for the time being in force or any rules, order or any instructions issued thereunder, enacted or issued for the benefits of 19 persons with disabilities." 12. Merely because under Rule 38 of CCS Pension Rules, 1972, the appellant got invalidity pension is no ground to deny the protection, mandatorily made available to the appellant under Section 47 of the Act. Once it is held that the appellant has acquired disability during his service and if found not suitable for the post he was holding, he could be shifted to some other post with same pay-scale and service benefits; if it was not possible to adjust him against any post, he could be kept on a supernumerary post until a suitable post was available or he attains the age of superannuation, whichever is earlier. It appears no such efforts were made by the respondents. They have proceeded to hold that he was permanently incapacitated to continue in service without considering the effect of other provisions of Section 47 of the Act.” 19. Learned counsel for the petitioner has also placed reliance upon the judgment of the Hon’ble Supreme Court in Bhagwan Dass and Another versus Punjab State Electricity Board, (2008) 1 SCC 579, wherein too, similar view has been expressed. 20. Learned counsel for petitioner has also placed reliance upon the judgment of the Hon’ble Supreme Court in Anil Kumar Mahajan vs. Union of India and others, (2013) 7 20 SCC 243, to contend that even if the petitioner had suffered disability, it was not open to the respondents to dispense with his service as per the provisions of Section 47 of the Act. The relevant paras of the judgment read as under:- “16. On hearing the parties and perusing the records, we find that there was some problem going on between the appellant and the authorities of the State which resulted in creating numerous problems. Since 1988, the appellant was suspended and for promotion and posting he had to move before the Tribunal in the year 1990. The departmental enquiry was initiated, wherein the allegation was made that the appellant was mentally sick and then the allegations of indiscipline, irresponsible and misbehaviour were made. The enquiry was proceeded for about 11 years, when the finding was given that the appellant is insane and the order of compulsory retirement was passed on 15-10-2007. 17. The Persons with disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the “the 1995 Act'”) was enacted in the year 1995 with the following statement of objects and reasons: "(i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities; (ii) to create barrier free environment for 21 persons with disabilities; (iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, vis-à-vis non- disabled persons; (iv) to counteract any situation of the abuse and the exploitation of persons with disabilities; (v) to lay down a strategy for comprehensive development of programmes and services and equalization of opportunities for persons with disabilities; and (vi) to make special provision of the integration of persons with disabilities into the social mainstream." 18. Section 2(i) of the 1995 Act defines "disability": " 2. (i) 'disability' means- (i) blindness; (ii) low vision; (iii) leprosy-cured; (iv) hearing impairment; (v) locomotor disability; (vi) mental retardation; (vii) mental illness;” 19. There is a prohibition imposed under Section 47 to dispense with, or reduce in rank, an employee who acquires a disability during his service, which reads as follows: "47. Non-discrimination in Government employments.-(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 22 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.” 20. The appellant was appointed in the service of respondents as an IAS officer and joined in the year 1977. He served for 30 years till the order of his compulsory retirement was issued on 15-10-2007. It is not the case of the respondents that the appellant was insane and in spite of that he was appointed as an IAS Officer in 1977. Therefore, even it is presumed that the appellant became insane, as held by the Inquiry Officer, mentally illness being one of the disabilities under Section 2(i) of the Act, 1995, under Section 47 it was not open to the respondents to dispense with, or reduce in rank of the appellant, who acquired a disability during his service. If the appellant, after acquiring disability was not suitable for the post he was holding, should have been shifted to some other post with the same pay scale and service benefits. Further, if it was not possible to adjust the appellant against any post, the respondents ought to have kept the appellant 23 on a supernumerary post until a suitable post is available or, until the appellant attained the age of superannuation whichever was earlier. 21. In view of the aforesaid finding, we are of the view that it was not open to the authorities to dispense with the service of the appellant or to compulsory retire him from service. The High Court also failed to notice the relevant fact and without going into the merit allowed the counsel to withdraw the writ petition merely on the basis of the finding of Inquiry Officer. In fact the High Court ought to have referred the matter to a Medical Board to find out whether the appellant was insane and if so found, in that case instead of dismissing the case as withdrawn, the matter should have been decided on merit by appointing an Advocate as amicus curiae. 22. It is informed at the bar that in normal course the appellant would have superannuated from service on 31-07-2012. In that view of the matter, now there is no question of reinstatement of the appellant though he may be entitled for consequential benefits including arrears of pay. Having regard to the facts and finding given above, we have no other option but to set aside the order of compulsory retirement of the appellant dated 15- 10-2007 passed by the respondents; the order dated 22-12-2008 passed by the Central Administrative Tribunal, Principal Bench, New Delhi in O.A.No.2784 of 2008 and the impugned order dated 20-4-2010 passed by the High Court of Delhi in Anil Kumar Mahajan v. Union of India and the case is remitted to the respondents with a direction to treat the appellant continued in the service till the date of his superannuation. The appellant shall be paid full salary minus the subsistence allowance already 24 received for the period from the date of initiation of departmental proceeding on the ground that he was suffering from mental illness till the date of compulsory retirement. The appellant shall also be provided with full salary from the date of compulsory retirement till the date of superannuation in view of the first and second proviso to Section 47 of the 1995 Act. If the appellant has already been superannuated, he will also be entitled to full retiral benefits counting the total period in service. The benefits shall be paid to the appellant within three months, else the respondents will be liable to pay interest at the rate of 6% per annum from the date the amount was due, till the actual payment.” 21. In the present case, so far as the disability is concerned, it is covered under the provisions of Section 2(i)(vi) of the Act and thus the order passed by respondent No.4 to dismiss the petitioner from service is against the import of the provisions of the Act, more particularly Section 47 of the Act. Once the Notification dated 21.08.2007 has come into force after the recruitment of the petitioner in the Police Department, the same is not applicable in his case. At the most, the respondents in future cannot engage the persons in the Police Department, since the establishment is 25 exempted as per the provisions of Section 33 of the Act, but they cannot dispense with the services of the employees who are already serving them. 22. The respondents while passing the impugned order has wrongly construed the provisions of the Act as well as the Notification dated 21.08.2007, which was not at all attracted to the facts of the present case. The respondents have ignored the instructions 02.08.1999 (Annexure A-18), issued by the State Government of Himachal Pradesh, wherein it was specifically mentioned that the provisions of Section 47 of the Act are applicable and no discrimination can be made for the purpose of employment of disabled persons in Government employment. In case, the impugned orders are allowed to stand, the very purpose of engrafting the aforementioned Act will be of no use and the object of engrafting will be frustrated. 23. Consequently, the present petition is allowed and the impugned orders dated 23.02.2011 (Annexure P-23) and 26 30.03.2011 (Annexure P-26) are quashed and set aside with a direction to the respondents to reinstate the petitioner on the post of Constable with all consequential benefits such as seniority, promotion etc. In case, the respondents do not pay the arrears to the petitioner within a period of three months from today, the petitioner shall be entitled to the interest on the arrears @6% per annum from today, till actual payment to him. 24. Pending application(s), if any, shall also stand disposed of. No order as to costs. 19 th June, 2026 ( Jiya Lal Bhardwaj ) (ankit) Judge