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REPORTABLE

IN THE SUPREME COURT OF INDIA

       CIVIL APPELLATE JURISDICTION

  CIVIL APPEAL NO.  4944  OF 2013     (ARISING OUT OF SLP(C) NO.26400 OF 2010)

ANIL KUMAR MAHAJAN  …APPELLANT

VERUS

UNION OF INDIA THROUGH SECRETARY, MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS, DEPARTMENT OF PERSONNEL AND TRAINING, NEW DELHI. AND OTHERS           … RESPONDENTS

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.

Leave granted.

2. This appeal has been preferred by the appellant against  

the judgment of the Division Bench of the High Court of  

Delhi dated 20th April, 2010 in W.P.(C)No.2622 of 2010.  

The relevant portion of the said judgment reads as  

follows:

“O R D E R

20.04.2010

After some arguments, learned counsel  for the   petitioner seeks to withdraw the  petition as a finding has been given by the  respondents, that the petitioner is an  insane person and the petition has been  filed by the insane person himself and not  through the next friend.

In the circumstances, learned counsel

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for the petitioner seeks to withdraw the  petition with liberty to file an  appropriate petition through the next  friend.

Dismissed as withdrawn with the liberty  prayed for.

All the pending applications are also  disposed.”

3. The aforesaid order has been challenged by the  

appellant on two counts mainly:

(i)    The High Court failed to decide the  

question as to whether the appellant is an  

insane person; and

(ii)    If so, i.e. if the appellant is insane,  

the High Court ought not to have allowed the  

lawyer who received instructions from an insane  

person to withdraw the case.

4. In this case, it is not necessary to discuss all the  

facts,  except the relevant one, as mentioned hereunder:

 The appellant joined the Indian Administrative Service  

(I.A.S.) on 12th July, 1977. He alleged that while he was  

posted as an Additional Secretary­cum­Editor of State  

Gazatteer, Bihar at Patna, he was placed under suspension  

from 17th  February, 1988 to 20th  February, 1988 and by  

another order dated 24th February, 1988 he was placed under  

suspension till further orders. Subsequently, the order of

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suspension was revoked on 24th  February, 1990. He moved  

before the Central Administrative Tribunal, Patna Bench, in  

O.A.No.288/1991 seeking a direction to the respondents to  

promote him to the selection grade from the date he became  

entitled with all the consequential benefits. The appellant  

contended that he has a clean service record, except for  

the year 1985­86 for which an adverse ACR was communicated  

to him by letter dated 25th February, 1989, after a lapse  

of near about three years. The detailed facts related to  

adverse entry, etc. were brought on record and the Tribunal  

after hearing the parties, by the judgment dated 22nd June,  

1992 held that it was not just and fair to act upon the  

adverse entry of 1985­86 against which the appellant's  

representation is still pending and directed the  

respondents to consider his case in the next DPC for  

promotion to the selection grade on the basis of existing  

material. The said application was accordingly disposed of  

by the Tribunal.  

5. It appears that another application Registration  

O.A.No.238/1991  was preferred by  the appellant  before  

the Central Administrative Tribunal, Patna Bench,  

wherein on the revocation order of suspension he prayed  

for a direction to the respondents to give him a post  

befitting to his status with further prayer to direct

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the respondents to pay his salary for the period from  

February, 1990 onwards with interest and cost. The said  

application was disposed of on 10th October, 1992 with a  

direction to the respondents to pay the appellant salary  

for the certain period with interest.

6. Subsequently, the appellant was placed under suspension  

on 20th  May, 1993 and was subjected to departmental  

inquiry by the Member Board of Revenue and Inquiry  

Officer who framed charges by Memo No. 6056 dated 22nd  

June, 1993 against the appellant.  

7. Appellant in his reply stated that a number of time he  

was placed under suspension and proceedings were  

initiated in that regard, and orders are made directing  

him to be present before a Medical Board, which not only  

tortured him but also his family, and also stated that  

he had developed incurable ulcer, hence he expressed his  

inability to be present before the inquiry.  

8. It appears that one of the charges was that the  

appellant while posted as Officer on Special Duty, Bihar  

State Planning Council had directed Treasury Officers,  

Secretariat Treasury, Patna to reject the bills of one Shri  

P.K. Mishra, Development Commissioner which was an act  

beyond his jurisdiction. The second charge was that while

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submitting one of the Travelling Allowance Bills, the  

appellant requested the Secretary(Personnel) to countersign  

the bill. He alleged that his Controlling Officer, i.e.,  

the Development Commissioner cannot countersign the bill as  

a case is being pursued against him under Mental Health  

Act, 1987. The third charge was that the appellant accused  

the Development Commissioner of losing his mental  

stability.   Fourth charge was related to description of  

duties written by him as per the confidential report (1985­

86) which shows that the appellant has become a victim of  

imbalanced mental illness. Fifth charge was that one Shri  

Bhaskar Banerjee, the then Land Reforms Commissioner has  

accused the   appellant of being   indisciplined,  

irresponsible, unstable and mentally sick.  

9. The appellant filed a representation on 25th February,  

2000 to the respondents seeking voluntary retirement. He  

remained under  suspension for  a  long period.   When  the  

suspension was not revoked even after several years, the  

appellant preferred representation before the higher  

authorities which was rejected by the Ministry of  

Personnel, Public Grievances& Pension Department of  

Personnel & Training on 29th April, 2002. The representation  

of the appellant seeking voluntary retirement was also  

rejected on the ground that he had not qualified the

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minimum 20 years of service and thus as per the  

respondents, he was not eligible for voluntary retirement.  

10. After about 11 years the Inquiry Officer submitted the  

report on 4th December, 2004. According to the appellant he  

was   not granted any opportunity of being heard   and the  

Inquiry Officer submitted an ex­parte report against him.  

The suspension  order seems  to  have been  revoked by  the  

respondents with effect from 23rd October, 1998.  

11. A writ petition was filed by the appellant before the  

High Court; wherein a counter­affidavit was filed and the  

respondents took a plea that despite the revocation of the  

suspension order of the appellant, he never joined the  

duties and remained absent despite repeated reminders made  

by the Department.  In the writ petition preferred by the  

appellant, the High Court has recorded the submissions of  

the appellant that he would be satisfied if the respondents  

considered his request for voluntary retirement and release  

him from his service. A contempt petition was also filed by  

the appellant in 2006 on the ground of violation of the  

order dated 9th  May, 2006 passed by the Delhi High Court.  

During the pendency of the writ petition and the contempt  

petition,  the authorities the passed impugned order dated  

15th October, 2007,  whereby the appellant was compulsorily  

retired from service.   

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12. The appellant preferred an application being  

O.A.No.2784/2008 before the Central Administrative  

Tribunal,  Principal Bench, New Delhi wherein he challenged  

the departmental proceedings. Before the Tribunal, learned  

counsel for the appellant contended that though the Inquiry  

Officer had returned a finding in favour of the appellant,  

insofar as charge No.3 is concerned, but the disciplinary  

authority without recording a note of dissent held that the  

said charge as well stands proved. The Tribunal accepted  

that the disciplinary authority had not recorded any note  

of dissent and accepted the report of the Inquiry Officer.  

The tentative view of the disciplinary   authority, even  

when charge No.3 stood not proved; was to punish the  

appellant with the compulsory retirement.  But the Tribunal  

found that it was only U.P.S.C. which has returned a  

finding of guilt insofar as, charge No.3 was concerned, and  

the disciplinary authority has only accepted the said  

finding.   Confronted with the aforesaid position, learned  

counsel for the appellant contended that the U.P.S.C. had  

no jurisdiction whatsoever to return a finding on charge  

No.3 by reversing the finding given by the Inquiry Officer,  

and that it had only an advisory role to play.   It was  

further urged that the disciplinary authority was not bound  

to accept the advice of U.P.S.C. The Tribunal went into the

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aspects of the case but held that in the context of the  

facts and circumstances of the present case, there is no  

need to go into the same as  a positive finding has been  

given by the Inquiry Officer that the appellant was totally  

insane. The disciplinary authority agreed to the same and  

despite the fact that charge No.3 was not proved, and while  

taking the same to have not been proved, it was the opinion  

of the disciplinary authority that the appellant would need  

to be compulsorily retired. Therefore, the Tribunal held  

that the opinion or advice of U.P.S.C. has made no  

difference whatsoever in the case.  Insofar as the insanity  

of the appellant was concerned, it appears that the  

appellant was asked to appear before the duly constituted  

Medical Board on eight occasions and he refused to appear  

before the Medical Board. Instead, he challenged the order  

of the Inquiry Officer calling upon him to appear before  

the Medical Board.   

  The  Tribunal,  further,  observed  that  yet  another  

reason to  hold the  appellant  is insane,  i.e., his  non­

appearance before the duly constituted Medical Board, which  

would necessarily lead to an irresistible presumption that  

had the appellant appeared before the Medical Board the  

opinion of the Board would indeed have been that the  

appellant is insane.   Having found no merit, the Tribunal

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dismissed the original application.  

13. The appellant then preferred the writ petition being  

W.P.(C)No.2622/2010 challenging the finding of the Tribunal  

in the said case. The Division Bench passed the impugned  

order dated 20th  April, 2010, as quoted in the preceding  

paragraph.  

14. The SLP was preferred by the appellant in person. In  

view of the severe cardio respiratory problem of the  

appellant, subsequently he did not appear in person, he  

engaged the counsel.  

15. 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  

inquiry 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  

inquiry 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 15th October, 2007.

16. The Persons with disabilities (Equal Opportunities,  

Protection of Rights and Full Participation) Act, 1995

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(hereinafter referred to as the 'Act, 1995') 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  persons with disabilities;

(iii) to remove any discriminaton against  persons with disabilities in the sharing  of development benefits, vis­à­vis 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  intergration of persons with  disabilities into the social  mainstream.”

Section 2(i) defines disability:

“Section 2(i) "disability" means­  

(i)   blindness;  (ii)  low vision;    (iii) leprosy-cured;  (iv)  hearing impairment;   (v)   loco motor disability; (vi)  mental retardation;  

  (vii) mental illness;”

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17. 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  ­  Non­discrimination 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:

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.”

18. 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  15th October, 2007. It is not the  

case of the respondents that the appellant was insane and

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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 on a supernumerary post until a suitable  

post is available or, until the appellant  attained the age  

of superannuation whichever was earlier.

19. 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,

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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.  

20. It is informed at the bar that in normal course the  

appellant would have superannuated from service on 31st  

July, 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 15th  October,  

2007 passed by the respondents; the order dated 22nd  

December, 2008 passed by the Central Administrative  

Tribunal, Principal Bench, New Delhi in O.A.No.2784/2008  

and the impugned order dated 20th April, 2010 passed by the  

High Court of Delhi in W.P.(C)No.2622/2010 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 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

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date of compulsory retirement till the date of  

superannuation in view of the first and second proviso to  

Section 47 of the Act, 1995. 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. The appeal is allowed with the aforesaid observations  

and directions but there shall be no order as to costs.  

       …..………………………………………….J.                    (G.S. SINGHVI)

……..……………………………………….J.                    (SUDHANSU JYOTI MUKHOPADHAYA)

NEW DELHI, JULY 2,  2013.

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