# (2011) 2 ILRA 701

- **Citation:** (2011) 2 ILRA 701
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-05-27
- **Case number:** Civil Misc. Writ Petition No. 6626 of 2004
- **Bench:** Prakash Krishna
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/2011-2-ilra-701-41977
- **Pages:** 9

## Headnote

Sri C.P. Srivastava
Sri Anubhav Chandra
C.S.C.

U.P.
Road
Transport
Corporation
Employees (other than Officer) Service
Regulation,
1981-Section
2(i)-Physical
disability-petitioner a driver advised for
lightwork instead of driver-as suffering
from " Asthmatic Bronchitis Lt. shoulder
joint injury"-admittedly the petitioner was
offered and worked on alternate job till the
date of superannuation-can not be treated
disable as per definition of Section 2(i)-
entitled for every consequential benefits
including post retiral benefits.

Held: Para 28, 29 and 34

Keeping in view that the Act, 1995 is piece
of welfare legislation for the benefit of
such
employees
who
have
suffered
disability
during
service,
it
would
appropriate
to
hold
that
the
word
"disability" mentioned in Section 47 should
be interpreted broadly and liberally. In
other words, it will include any such
disability though not included in the
702 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
definition of Section 2(i) of the Act, 1995
but because of which the employee is
vitiated with discharge or reduction in
service, Section 47 will come into play to
protect the interest of such an employee
by offering alternative job and if it is not
possible to adjust the employee against
any
post,
he
will
be
kept
on
supernumerary post until a suitable post is
available or he attains the age of his
superannuation whichever is earlier.

The intention of enactment of the Act,
1995
is
not
to
restrict
only
those
categories
or
persons
mentioned
in
Section 2(i) alone to be entitled to the
benefits under the Act on purposive
interpretation
of
Section
2(i),
it
is
reasonable to hold in other words that the
definition of "disability" under Section 2(i)
of the Act, 1995 is not exhaustive.

The
observations
that
there
is
no
alternative job in the Corporation is linked
with the earlier part of its order i.e. the
petitioner is not a disabled person within
the meaning of "disability" as defined in
Section 2(i) of the Act, 1995. There is no
denying of the fact that the petitioner was
offered alternative job by posting in the
depot, which was accepted by him. He
continued on the said post till he attained
the age of superannuation. There is no
suggestion in the counter affidavit that
there was no job of greasing the buses in
the depot. It follows that there was an
alternative job for the petitioner which
was offered and accepted by him. He
continued on such post till he attained the
age of superannuation.
Case law discussed:
JT 1987 (1) SC 246; JT 1989 (4) SC 529; 2001
(9) SC 84; AIR 2003 SC 1623

## Text

2 All Peer Baksha V. Regional Manager U.P.R.T.C., Kanpur and others
701
people.
Section
5
(B)
of
the
Cinematography
Act,
1952
provides
guidelines which prima facie seems to be
applicable in the present case. Why the
Central Board of Film Certification has
failed to take appropriate decision while
clearing the film, is a matter of deep
concern before this Court. In Chapter XV,
Section 295 and 295-A of Indian Penal
Code, provide that no person has got right
to
act
deliberately
or
maliciously
intending to outrage the religious feelings
of any class by insulting religion or
religious sentiments. Needless to say that
under Hindu religion, Rass Lila co-relate
with Lord Krishna. Prima facie, the word,
cannot be used in derogative sense.

5. In view of the above, we admit
the writ petition.

6. Issue notice to respondent No.1, 2
and 3 returnable at an early date.

7. Six weeks time is allowed to file
counter affidavit and two weeks time is
allowed to file rejoinder affidavit.

8. List thereafter.

9. As an interim measure, the
respondent No.3 is directed to reconsider
the grant of certificate along with the song
having title, "Ready" with the song, "Ishq
Ke Naam Par Karte Sabhi Ab Rass Lila
Hain, Hum Karen to Kahte Hai Character
Dhila Hai", within a period of one month
from the date of receipt of a certified copy
of this order. In case no decision is taken,
this Court may consider the prayer of the
petitioners with regard to interim relief.

10. List immediately after two
months along with the bunch of writ
petitions.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.05.2011

BEFORE
THE HON'BLE PRAKASH KRISHNA,J.

Civil Misc. Writ Petition No. 6626 of 2004

Peer Baksha

 ...Petitioner
Versus
Regional Manager, Uttar Pradesh Road
Transport Corporation, Kanpur Region,
Kanpur and others.
 ...Respondents

Counsel for the Petitioner:
Sri Kaushal Kishore Mishra

Counsel for the Respondents:
Sri C.P. Srivastava
Sri Anubhav Chandra
C.S.C.

U.P.
Road
Transport
Corporation
Employees (other than Officer) Service
Regulation,
1981-Section
2(i)-Physical
disability-petitioner a driver advised for
lightwork instead of driver-as suffering
from " Asthmatic Bronchitis Lt. shoulder
joint injury"-admittedly the petitioner was
offered and worked on alternate job till the
date of superannuation-can not be treated
disable as per definition of Section 2(i)-
entitled for every consequential benefits
including post retiral benefits.

Held: Para 28, 29 and 34

Keeping in view that the Act, 1995 is piece
of welfare legislation for the benefit of
such
employees
who
have
suffered
disability
during
service,
it
would
appropriate
to
hold
that
the
word
"disability" mentioned in Section 47 should
be interpreted broadly and liberally. In
other words, it will include any such
disability though not included in the
702 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
definition of Section 2(i) of the Act, 1995
but because of which the employee is
vitiated with discharge or reduction in
service, Section 47 will come into play to
protect the interest of such an employee
by offering alternative job and if it is not
possible to adjust the employee against
any
post,
he
will
be
kept
on
supernumerary post until a suitable post is
available or he attains the age of his
superannuation whichever is earlier.

The intention of enactment of the Act,
1995
is
not
to
restrict
only
those
categories
or
persons
mentioned
in
Section 2(i) alone to be entitled to the
benefits under the Act on purposive
interpretation
of
Section
2(i),
it
is
reasonable to hold in other words that the
definition of "disability" under Section 2(i)
of the Act, 1995 is not exhaustive.

The
observations
that
there
is
no
alternative job in the Corporation is linked
with the earlier part of its order i.e. the
petitioner is not a disabled person within
the meaning of "disability" as defined in
Section 2(i) of the Act, 1995. There is no
denying of the fact that the petitioner was
offered alternative job by posting in the
depot, which was accepted by him. He
continued on the said post till he attained
the age of superannuation. There is no
suggestion in the counter affidavit that
there was no job of greasing the buses in
the depot. It follows that there was an
alternative job for the petitioner which
was offered and accepted by him. He
continued on such post till he attained the
age of superannuation.
Case law discussed:
JT 1987 (1) SC 246; JT 1989 (4) SC 529; 2001
(9) SC 84; AIR 2003 SC 1623

(Delivered by Hon'ble Prakash Krishna,J.)

1. The petitioner was appointed on
2nd December, 1977 as driver in the Uttar
Pradesh Road Transport Corporation, by
means of the present writ petition has
challenged the order dated 29.11.2003
discharging him from service.

2. The facts are few and not in
dispute. From inception of the service till
he
was
finally
discharged
by
the
impugned order 29.11.2003 there is
absolutely nothing against the work and
conduct of the petitioner. The petitioner
has been discharged for medical reasons.
In the year 1999 he was medically
examined. The doctor gave a report to the
Assistant
Regional
Manager,
Uttar
Pradesh Road Transport Corporation that
the petitioner is not medically fit to drive
the Bus as he is a patient of asthmatic
bronchitis C Lt. shoulder Jt. injury.
However, the doctor further suggested
that he may be given an alternative job
instead of driving vehicles. The said
report has been annexed as annexure-1 to
the writ petition.

3. In the light of the medical report,
the petitioner was shifted to workshop for
doing other duties like greasing. He was
again medically examined on 21.05.2002
and thereafter the impugned discharge
order dated 29.11.2003 was passed. In
between a further development took
place.

4. It appears that the Corporation
decided that the workers who are disabled
may not be posted at their original Depot
and therefore, the order dated 5.06.2003
proposing transfer of the petitioner to
another Depot outside the district was
passed and in this regard, option with
regard to three places was asked for. The
petitioner along with other persons being
aggrieved by the said order/action of the
Corporation approached this Court by
filing a writ petition. The petitioner filed
Writ Petition No. 34068 of 2003, which
2 All Peer Baksha V. Regional Manager U.P.R.T.C., Kanpur and others
703
was disposed of in terms of the judgment
delivered in Writ Petition No. 32349 of
2003 by the order dated 08.08.2003. The
petitioner represented that he should not
be
transferred
to
another
Depot.
According to the petitioner, the request of
the petitioner was not well received by the
Corporation and its Officials became
annoyed and this led passing of the
impugned discharge order by offering
retrenchment benefit under Section 6-N of
the U.P. Industrial Dispute Act, 1947.

5. In the counter affidavit as well as
in the impugned order, the stand taken by
the respondents is that the petitioner was
discharged
from
the
service
after
becoming medically unfit for the post of
driver. He was initially allotted some
lighter work. The disease suffered by the
petitioner does not come within the
meaning of "disability" under the Person
with Disabilities (Equal Opportunities,
Protection
of
Rights
and
Full
Participation)
Act,
1995
(hereinafter
referred to as "the Act, 1995") as such he
is not entitled to get the benefit of Section
47 of the said Act.

6. Heard the learned counsel for the
parties.

7. At the very out set, it may be
stated that while entertaining the writ
petition, this Court on 19th February,
2004
stayed
the
operation
of
the
impugned order dated 29.11.2003. The
said
order
remained
in
operation
throughout.
In
the
meantime,
the
petitioner
attained
the
age
of
superannuation. In this background, the
writ petition was disposed of earlier by
the judgment dated 1st February, 2008 by
providing that the petitioner be treated as
an employee till he retired on 31st
January, 2007 and be paid retrial benefit
etc. by ignoring the impugned order dated
29.11.2003.

8. The matter was carried in intra
court appeal being Special Appeal No.
825 of 2008. A Division Bench of this
Court by its judgment dated 16.07.2008
has allowed the appeal and set aside the
judgment of the learned Single Judge and
restored the matter back for fresh decision
on merits.

9. Learned counsel for the petitioner
submitted that the impugned order was
passed as the petitioner had challenged
proposed transfer from one depot to
another. The petitioner has discharged the
work of greasing till the date of his
retirement and therefore, the impugned
order dated 29.11.2003 be set aside.

10. Learned counsel for the
respondents, on the other hand, submits
that the petitioner was medically found
unfit for the post of driver. Intially, he
was adjusted by providing him some
alternative job in the depot. The disability
of the petitioner is of such nature which
does not come within the definition of
"disability" as defined under the under the
Act, 1995. The respondent Corporation
has taken policy decision to offer an
alternative employment by shifting to
some other depot with the same pay-scale
and service benefits only to such
employees whose disability falls within
the four corners of disabilities as defined
under Section 2(i) of the Act, 1995.

11. Considered the respective
submissions of the learned counsel for the
parties and perused the record.
704 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

12. As noticed herein above, the
only ground on which the impugned order
is founded is the medical report, finding
that the petitioner is unfit for the post of
driver. There cannot be any dispute that if
a doctor finds that the person is medically
unfit for a particular job, his opinion
deserved due weight. No attempt was
made before this Court to establish that
the "disability" of the petitioner is of such
nature which falls in section 2(i) of the
Act, 1995.

13. The petitioner was found unfit in
the medical report dated 03.04.1999 as he
was suffering with asthmatic bronchitis C
Lt. shoulder Jt. Injury. The doctor advised
that he may be given some alternative job.
The attention of the Court was invited
towards the Uttar Pradesh State Road
Transport Corporation Employees (Other
than Officers) Service, Regulations, 1981,
Regulation-17 in particular. The said
Regulation is reproduced below:

"17.
Physical
fitness.--(1)
No
candidate shall be appointed to a post in
the service unless he be in good mental
and bodily health and free from any
physical defect likely to interfere with the
performance of duties. Before a candidate
is finally approved for appointment, he
shall be required to produce a medical
certificate
of
fitness,
in
the
form
prescribed in annexure ''D' from the Chief
Medical Officer or any other Medical
Officer, nominated or approved by the
Corporation.

(2) A person, appointed to the post of
driver will be required to undergo
medical test, particularly vision test,
every year or at such intervals as may be
prescribed by the General Manager from
time to time.

(3) The service of a person who fails to
pass the fitness test, referred to in the subregulation (2), may be dispensed with :

Provided that the persons, whose
services are so dispensed with may, in the
discretion of the Corporation, be offered
alternative job."

14. A driver of the Corporation is
required
to
undergo
medical
test,
particularly the vision test, every year or
at such intervals as may be prescribed by
the General Manager from time to time
and if any person who fails to pass the
fitness test, the services of any such
person may be dispensed with. The
proviso enables the Corporation at its
discretion to offer alternative job.

15. The question which boils down
is whether the stand taken by the
respondent Corporation that in view of the
fact that the disability of the petitioner
does not fall within the definition of
"disability" as defined under the Act,
1995, no discretion is left to the
Corporation but to dispense with services
of such disabled persons.

16. The Act, 1995 was passed in the
light of the Proclamation on the Full
Participation and Equality of the People
with Disabilities in the Asian and Pacific
Region. The said Proclamation was
accepted on principle by India being a
signatory thereto. To discharge the said
obligation, the Act, 1995 was passed, as
its introduction states. The idea of the said
enactment is to provide jobs to the
persons suffering with disabilities. A brief
survey of the provisions of the said Act
would show that in the definition clauses
various terms used in the said Act
including "disabilities" have been defined.
2 All Peer Baksha V. Regional Manager U.P.R.T.C., Kanpur and others
705
Section 47 of the Act, 1995, which has
been relied in reply, by the learned
counsel for the respondents is reproduced
below:

47.
Non-discrimination
in
Government
employment.--(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.

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."

17. The stand taken by the
respondents is that services of employee
who acquires disability during his service
shall not be dispensed with, or reduced in
rank. The word "disability" has been
defined in Section 2(i) of the Act, 1995.
The same is reproduced below:

"2(i) "disability" means--

(i) blindness;

(ii) low vision;

(iii) leprosy-cured;

(iv) hearing impairment;

(v) locomotor disability;

(vi) mental retardation;

(vii) mental illness;"

18. The principal argument of the
respondents is that as the disability
suffered by the petitioner does not fall in
any of the clauses of the word "disability"
as defined in Section 2(i) of the Act,
1995, Section 47 thereto cannot be
pressed into service. On a careful
consideration of the matter, it is difficult
to agree with him.

19. The centre theme of Section 47
of the Act is to protect the service of such
employees who have acquired disability
during service. It does not follow that the
service of such employee has to be
dispensed with, whose "disability" does
not
come
within
the
meaning
of
"disability" as defined in Section 2(i) of
the Act, 1995. The aim and object of
enactment of Section 47 of the Act is to
provide protection to such employees who
have suffered disability to the extent of
blindness, low vision, leprosy-cured,
hearing impairment, locomotor disability,
mental retardation, mental illness.

20. The opening phrase of Section 2
reads "unless the context otherwise
requires"
purposive
construction
to
definition clause has to be adopted. The
court should not only look at the words
but also look at the context, the
collocation and the object of such words
relating to such matter and interpret the
706 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
meaning intended to convey by the use of
words under such circumstances.

21. When a word has been defined
in the interpretation clause, prima facie
that definition governs whenever that
word is used in the body of the statute.
But where the context makes the
definition given in the interpretation
clause inapplicable, a defined word when
used in the body of the statute may have
to be given a meaning different from that
contained in the interpretation clause; all
definitions given in an interpretation
clause are therefore normally enacted
subject to the qualification― 'unless there
is anything repugnant in the subject or
context', or 'unless the context otherwise
requires'. (See: Indian City Properties
Ltd. v. Municipal Commissioner of
Greater Bombay, (2005) 6 SCC 417.)

22. In Reserve Bank of India v.
Peerless Corp., JT 1987 (1) SC 246, the
Supreme Court has observed as follows:

"33. Interpretation must depend on
the text and the context. They are the
bases of interpretation. One may well say
if the text is the texture, context is what
gives the colour. Neither can be ignored.
Both are important. That interpretation is
best
which
makes
the
textual
interpretation match the contextual. A
statute is best interpreted when we know
why it was enacted. With this knowledge,
the statute must be read, first as a whole
and then section by section, clause by
clause, phrase by phrase and word by
word. If a statute is looked at, in the
context of its enactment, with the glasses
of the statute-maker, provided by such
context, its scheme, the sections, clauses,
phrases and words may take colour and
appear different than when the statute is
looked at without the glasses provided by
the context. With these glasses we must
look at the Act as a whole and discover
what each section, each clause, each
phrase and each word is meant and
designed to say as to fit into the scheme
of the entire Act. No part of a statute
and no word of a statute can be
construed in isolation. Statutes have to
be construed so that every word has a
place and everything is in its place. It is
by looking at the definition as a whole
in the setting of the entire Act and by
reference
to
what
preceded
the
enactment and the reasons for it that
the Court construed the expression
"Prize Chit" in Srinivasa and we find
no reason to depart from the Court's
construction."

23. In Union of India v. Filip Tiago
De Gama, JT 1989 (4) Sc 529, the
Supreme Court has observed as follows:

"16. The paramount object in
statutory interpretation is to discover
what the legislature intended. This
intention is primarily to be ascertained
from the text of enactment in question.
That does not mean the text is to be
construed merely as a piece of prose,
without reference to its nature or
purpose. A statute is neither a literary
text nor a divine revelation. "Words are
certainly not crystals, transparent and
unchanged" as Mr Justice Holmes has
wisely and properly warned. (Towne v.
Eisner [245 US 428,425 (1918)]) Learned
Hand, J., was equally emphatic when he
said: "Statutes should be construed, not as
theorems of Euclid, but with some
imagination of the purposes which lie
behind them." (Lenigh Valley Coal Co.
v. Yensavage [218 FR 547, 553])."
2 All Peer Baksha V. Regional Manager U.P.R.T.C., Kanpur and others
707

24. In Anwar Hasan Khan Vs.
Mohd. Shafi and others, 2001 (9) SC 84,
the Supreme Court has observed as
follows:

"8. It is settled that for interpreting a
particular provision of an Act, the import
and effect of the meaning of the words
and phrases used in the statute have to be
gathered from the text, the nature of the
subject-matter and the purpose and
intention of the statute. It is a cardinal
principle of construction of a statute that
effort should be made in construing its
provisions by avoiding a conflict and
adopting a harmonious construction. The
statute or rules made thereunder should be
read as a whole and one provision should
be construed with reference to the other
provision to make the provision consistent
with the object sought to be achieved. The
well-known principle of harmonious
construction is that effect should be given
to all the provisions and a construction
that reduces one of the provisions to a
"dead
letter"
is
not
harmonious
construction."

25. The Apex Court in case of
Kunal Singh v. Union of India and
another, AIR 2003 SC 1623, has held
that the very frame and contents of
Section 47 clearly indicate its mandatory
nature. It contains a clear directive that
the employer shall not dispense with or
reduce in rank an employee who acquires
a disability during the service. The
following
observations
therefrom
is
relevant and reproduced below:

"The very frame and contents of
Section 47 clearly indicate its mandatory
nature. It 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, 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. The plea that benefit of Section
47 is not available to the appellant as he
has suffered permanent invalidity cannot
be accepted."

26. As stated above, the Act, 1995 is
welfare legislation and also remedial in
nature. It is useful to reproduce a passage
from the book of Justice G.P. Singh, title
Principles of Statutory Interpretation,
Tenth Edition:

"Every modern legislation is actuated
with some policy and speaking broadly
has some beneficial object behind it. But
then there are legislations which are
directed to cure some immediate mischief
and bring into effect some type of social
reform by ameliorating the condition of
certain class of persons who according to
present-day notions may not have been
fairly treated in the past."

27. The remedial statute receives
liberal construction. In such statutes, the
doubt is resolved in favour of the class of
persons for whose benefit the stature is
enacted. In construing a remedial statute
the courts ought to give to it "the widest
operation which its language will permit.
They have only to see that the particular
case is within the mischief to be remedied
708 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
and falls within the language of the
enactment." The words of such a statute
must be so construed as "to give the most
complete remedy which the phraseology
will permit, so as "to secure that the relief
contemplated by the statute shall not be
denied to the class intended to be
relieved." In the field of labour and
welfare legislation which have to be
broadly and liberally construed the Court
ought to be more concerned with the
colour the content and the context of the
statute rather than with its literal import
and it must have due regard to the
Directive Principles of State Policy (Part
IV
of
the
Constitution)
and
any
international convention on the subject
and a teleological approach and social
perspective
must
play
upon
the
interpretative process.

28. Keeping in view that the Act,
1995 is piece of welfare legislation for the
benefit of such employees who have
suffered disability during service, it would
appropriate to hold that the word
"disability" mentioned in Section 47
should
be
interpreted
broadly
and
liberally. In other words, it will include
any such disability though not included in
the definition of Section 2(i) of the Act,
1995 but because of which the employee
is vitiated with discharge or reduction in
service, Section 47 will come into play to
protect the interest of such an employee
by offering alternative job and if it is not
possible to adjust the employee against
any
post,
he
will
be
kept
on
supernumerary post until a suitable post is
available or he attains the age of his
superannuation whichever is earlier.

29. The intention of enactment of
the Act, 1995 is not to restrict only those
categories or persons mentioned in
Section 2(i) alone to be entitled to the
benefits under the Act on purposive
interpretation of Section 2(i), it is
reasonable to hold in other words that the
definition of "disability" under Section
2(i) of the Act, 1995 is not exhaustive.

30. This is one aspect of the matter.
There is another aspect also. If Service
Rules or Regulations provide to such
person an alternative job which he can
perform,
his
service
shall
not
be
dispensed with or he will not be reduced
in
rank.
Importantly,
proviso
to
Regulation-17
(already
reproduced)
confers discretion on the Corporation to
offer
alternative
job.
Proviso
to
Regulation-17 and Section 47 of the Act
go hand in hand. There is no conflict or
head on collusion. The aim and object of
both the provisions is the same i.e. to
provide protective umbrella to such a
disabled employee who has suffered
disability in the service, by offering
alternative job.

31. It is also apt to note Section 72
of the Act, which reads as follows:

"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
persons with disabilities."

32.

This
section
clearly
demonstrates that the Act, 1995 has been
enacted in addition to and not in
derogation any other law. The Apex Court
in the case of Kunal Singh (supra) has
held that the fact that the employee is
2 All Smt. Asha Saxena V. U.P. S.E.B. Ex. Engineer, Electricity Kanpur(N)
709
getting invalidity pension is no ground to
deny the protection, mandatorily made
available
to
such
employees
under
Section 47 of the Act, 1995.

33. The impugned order is founded
on the premises that the disability suffered
by the petitioner does not fall within the
purview of disability as defined under the
Act, 1995.

34. The observations that there is no
alternative job in the Corporation is linked
with the earlier part of its order i.e. the
petitioner is not a disabled person within
the meaning of "disability" as defined in
Section 2(i) of the Act, 1995. There is no
denying of the fact that the petitioner was
offered alternative job by posting in the
depot, which was accepted by him. He
continued on the said post till he attained
the age of superannuation. There is no
suggestion in the counter affidavit that
there was no job of greasing the buses in
the depot. It follows that there was an
alternative job for the petitioner which
was offered and accepted by him. He
continued on such post till he attained the
age of superannuation.

35. Viewed as above, there is
sufficient force in the writ petition. The
writ petition, therefore, succeeds and is
allowed. The impugned order dated
29.11.2003
is
hereby,
quashed.
Resultantly, the petitioner is treated in
service till the date of age of his
superannuation. Learned counsel for the
petitioner submitted that the retrenchment
benefit and other consequential benefits
which were given through the impugned
order, subsequently adjusted in the salary
of the petitioner. This fact can be verified
from the record and no decision is
required in the present writ petition. The
respondents will pay the post retiral
benefit as admissible to the petitioner
treating him as a superannuated employee
in accordance with the law preferably
within a period of two months from the
date of production of certified copy of this
order.

36. The writ petition succeeds and is
allowed with cost of Rs.5000/- payable by
the respondents jointly to the petitioner.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.05.2011

BEFORE
THE HON'BLE SIBGHAT ULLAH KHAN,J.

Civil Misc. Writ Petition No. 18681 of 1997

Smt. Asha Saxena

 ...Petitioner
Versus
U.P.
S.E.B.
Ex.
Engineer,
Electricity
Kanpur(N)

 ...Respondent

Counsel for the Petitioner:
Sri A.K. Srivastava
Sri K.N. Yadav

Counsel for the Respondent:
Sri S.P. Mehrotra
Sri Ranjeet Saxena

Constitution of India-Article 226-Penal
Rent-petitioners being the legal heirs of
deceased employee-challenged recovery
of Rs. 118000/-towards penal rent-as
their father who was allowed the quarter
in question had already retired on
30.01.91
and
died
on
16.10.96-still
petitioner have maintained their illegal
possession-held-if
accommodation
vacated within two weeks-amount of
damage be adjusted from amount of
unpaid retiral dues-even the balance
amount be recovered as arrear of land
revenue.