Sunday, 26 May 2019

Whether ACP benefit given to government servant can be recovered if he could not work on promotional post due to physical disability?

We find that benefit of ACP was given to petitioner in view of service conditions to avoid stagnation. After the petitioner declined promotion, respondents rightly ordered its withdrawal. This withdrawal was not given effect to immediately though order to that effect was passed on 18.12.2006. Petitioner has retired almost 11 years thereafter. After retirement, that order is sought to be given effect to. Here provisions of Section 47(2) of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 also need to be kept in mind. Petitioner could not function on promotional post because of his disability. That disability could not have been used to deny him at least the benefit of ACP. Recovery as proposed is, therefore, unsustainable.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 7133 of 2017

Decided On: 25.09.2018

 Gulab Ganpatrao Hole Vs. The Chief Executive Officer, Amravati and Ors.

Hon'ble Judges/Coram:
B.P. Dharmadhikari and M.G. Giratkar, JJ.

Citation: 2019(2) MHLJ 209


1. Rule. Rule made returnable forthwith. Heard Shri Vaishnav, learned Counsel appearing on behalf of the petitioner.

2. The facts show that petitioner - 55 per cent disabled peon was promoted as Junior Assistant vide order dated 05.04.2006. Petitioner, by his application submitted on 06.09.2006, declined to accept promotion. Because of these developments, on 18.12.2006, his employer posted him back as Peon and ordered that ACP benefit already released cannot be enjoyed and needed to be cancelled.

3. Accordingly, it was ordered that from 06.09.2006, petitioner would not be eligible to ACP scale. This order dated 18.12.2006 withdrawing ACP benefit was not implemented till 25.09.2017. Petitioner superannuated in the meanwhile on 31.12.2017. After retirement, amount of Rs. 2,48,534/- is sought to be recovered from his terminal dues. This Court has stayed that recovery on 07.11.2017 while issuing notice. Though employer was served, employer did not appear and hence on 27th June, 2018, this Court issued fresh notice for final disposal. Though notice is also served, still respondent-employer has chosen not to appear.

4. Learned Counsel for petitioner submits that in view of judgment of Hon'ble Apex Court in the case of State of Punjab and others .v. Rafiq Mashi (White Washer) and others (reported at MANU/SC/1195/2014 : 2015(4) SCC, 334) as followed in later judgment of Hon'ble Apex Court in the case of High Court of Punjab and Haryana .v. Jagdev Singh (reported at MANU/SC/0831/2016 : 2016(14) SCC, 267), the recovery after superannuation is not permitted. He also pointed out that the petitioner happens to be 55 per cent disabled person and he had not suppressed anything from his employer.

5. We find that benefit of ACP was given to petitioner in view of service conditions to avoid stagnation. After the petitioner declined promotion, respondents rightly ordered its withdrawal. This withdrawal was not given effect to immediately though order to that effect was passed on 18.12.2006. Petitioner has retired almost 11 years thereafter. After retirement, that order is sought to be given effect to. Here provisions of Section 47(2) of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 also need to be kept in mind. Petitioner could not function on promotional post because of his disability. That disability could not have been used to deny him at least the benefit of ACP. Recovery as proposed is, therefore, unsustainable.

6. Hence, in this situation, in the light of the judgments of Hon'ble Apex Court mentioned supra, we quash and set aside the impugned order dated 25.09.2017 and direct respondents to release all benefits to petitioner within two months from today.

Rule is made absolute accordingly.


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