[ad_1]
Patna High Court
Lalita Devi vs The Union Of India, Through The … on 8 May, 2025
Author: Purnendu Singh
Bench: Purnendu Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.13994 of 2021
======================================================
Lalita Devi Wife of Narottam Kumar Gupta Resident of Village- Parham,
Post- Farda, Police Station- Naya Ramnagar, District- Munger at presently
Posted as Block Teacher in Middle School, Parham, P.S.- Naya Ramnagar,
District- Munger.
... ... Petitioner/s
Versus
1. The Union of India, through the Secretary Human Resources Department,
Government of India, New Delhi.
2. The Secretary Human Resources Department, Government of India, New
Delhi.
3. Indira Gandhi National Open University Through its Regional Director,
Institutional Area, Mithapur, Patna.
4. Regional Director Indira Gandhi National Open University, Institutional
Area, Mithapur, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Ashutosh Kumar Verma, Advocate
For the Respondent/s : Mr. Kundan Kumar Singh, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL JUDGMENT
Date : 08-05-2025
Heard Mr. Ashutosh Kumar Verma, learned counsel
appearing on behalf of the petitioner and Mr. Kundan Kumar
Singh, learned counsel for the respondent/s.
2. The petitioner in paragraph no. 1 of the present writ
petition has sought inter alia following relief(s), which is
reproduced hereinafter:
"(I) To issue an appropriate writ
/order /direction in nature of mandamus, directing
Patna High Court CWJC No.13994 of 2021 dt.08-05-2025
2/8
the Respondents to allow the petitioner appear in
the supplementary examination of Diploma in
Primary Education (DPE) or petitioner should be
passed on the basis of average marking.
(II) To any other relief for which the
petitioner appear to found entitled by your lordships
deem fit and proper."
3. The petitioner was appointed as a Block Teacher in
the year 2005 at Primary School Parham, Block- Jamalpur,
District- Munger vide Memo No. 348 dated 24.06.2005 and she
joined the school on 06.07.2005. The said Primary School was
later upgraded as Utkramit Middle School, Parham. After
completion of two years of service, the Headmaster of the said
school issued a letter dated 31.05.2008 and directed the
petitioner to attend the programme of Diploma in Primary
Education (DPC) conducted by Indira Gandhi National Open
University (hereinafter referred to as the "IGNOU"). The
petitioner took admission in the said programme in July, 2008
and her Enrollment No. was 086362185. The petitioner had
participated in six days workshop under the said programme
conducted by IGNOU and a certificate was awarded in favour of
the petitioner. The petitioner completed Diploma in Primary
Education Progamme but she could not appear in theory ES-
221, ES-222 and practical-1 exam as she was undergoing
treatment at Mental Hospital from 08.04.2010 till 31.12.2018
Patna High Court CWJC No.13994 of 2021 dt.08-05-2025
3/8
and, as such, the result of two paper could not be completed.
The authority also not allowed the petitioner to join the school
after his recovery from mental illness. Thereafter, the petitioner
had preferred appeal on 05.03.2019 before the District Appellate
Authority being Appeal No. 47 of 2019, which was allowed
vide order dated 26.09.2019 and the petitioner was allowed to
join the duty in the concerned school.
4. Considering the relief as prayed for in paragraph
no.1 of the present writ petition, I find that the petitioner had
undergone mental treatment and being mentally handicapped, he
is required to be treated as per the provisions of the Rights of
Persons with Disability Act (RPwD Act). In respect of a
mentally disabled persons in case of Rabindra Nath Shukla vs.
Uttar Bihar Gramin Bank & Ors. (CWJC No. 18853 of 2012),
where the petitioner had faced disciplinary action, I had
occasion to discuss the similar fact and I find that the
observations made in paragraphs no. 13, 14, 16, 18 and 19, of
the aforesaid case, find relevance with the fact of the present
case, which inter alia are reproduced hereinafter:
"13. The Apex Court in case of Ravinder
Kumar Dhariwal and another Versus Union of India and
Others, reported in (2023) 2 Supreme Court Cases 209,
faced with the similar situation, where a person suffering
from mental disability was subjected to the disciplinary
proceeding, has held that the proceedings are
discriminatory and violative of principle of the Rights of
Persons with Disability Act (hereinafter referred to as the
Patna High Court CWJC No.13994 of 2021 dt.08-05-2025
4/8
"RPwD Act"). The Apex Court has held as follows in
paragraph nos.148.2 and 149 of the Ravinder Kumar
Dhariwal (Supra).
148.2. The mental disability of a person need
not be the sole cause of the misconduct that led to the
initiation of the disciplinary proceeding. Any residual
control that persons with mental disabilities have over their
conduct merely diminishes the extent to which the disability
contributed to the conduct. The mental disability impairs
the ability of persons to comply with workplace standards
in comparison to their able-bodied counterparts. Such
persons suffer a disproportionate disadvantage due to the
impairment and are more likely to be subjected to
disciplinary proceedings. Thus, the initiation of disciplinary
proceedings against persons with mental disabilities is a
facet of indirect discrimination.
149. The disciplinary proceedings against the
appellant relating to the first enquiry are set aside. The
appellant is also entitled to the protection of Section 20(4)
of the RPwD Act in the event he is found unsuitable for his
current employment duty. While re-assigning the appellant
to an alternate post, should it become necessary, his pay,
emoluments and conditions of service must be protected.
The authorities will be at liberty to ensure that the
assignment to an alternate post does not involve the use of
or control over firearms or equipment which may pose a
danger to the appellant or others in or around the
workplace."
14. The Hon'ble Supreme Court has set aside
the order of penalty. The facts of the present case are also
similar as of Ravinder Kumar Dhariwal (Supra) to the
extent that the petitioner was served with first charge
memo in the year 1997 and the case of the petitioner
without considering the provision of Section 47 of the
Rights of Persons with Disability Act, being 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,
the service conditions Rules cannot override Section 47 of
the Act. Further Section 72 of the Act also supports the
case of the petitioner. The said clarification has been laid
down by the Apex Court in case of Kunal Singh Versus
Union of India and Another, reported in (2003) 4 Supreme
Court Cases, 524 and in this regard paragraph no.11 of the
said judgment is reproduced hereinafter:-
"11. We have to notice one more aspect in
relation to the appellant getting invalidity pension as per
Rule 38 of the CCS Pension 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
Patna High Court CWJC No.13994 of 2021 dt.08-05-2025
5/8
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 benefit of persons with
disabilities."
16. The Apex Court in the case of Ravinder
Kumar Dhariwal (Supra) has discussed the changing legal
resume and continuing quest for justice in paragraphs
no.18 to 32. While discussing with the facts of the said case
in paragraph no.22, the Apex Court has observed that
Section 47 states that no employee working in a government
establishment, who acquires a disability during the course
of service shall be (i) terminated from employment; (ii)
reduced in rank; or (iii) denied promotion. Section 47
protects disabled employees from punitive actions on the
ground of disability. The Apex Court also clarifies that the
general rule of interpretation is that a newly enacted statute
has prospective application. Section 6 of General Clauses
Act provides an exception to this Rule, where a pending
legal proceeding or investigation would be guided by the
old enactment, if any, right, privilege, obligation or
liability' has accrued to the parties under the repealed law.
Exampling the said situation, as of in the present case, the
Apex Court has relied upon the law laid down in the case of
M/S. Ambalal Sarabhai Enterprises Ltd.Vs. M/S. Amrit
Lal & Co. & Anr, reported in (2001) 8 SCC 397. The
observation made in paragraphs no. 23 to 24 of Ravinder
Kumar Dhariwal (Supra) would be relevant in this regard,
which are reproduced hereinafter:-
"23. In Ambalal Sarabhai Enterprises Ltd. v.
Amrit Lal & Co. [Ambalal Sarabhai Enterprises Ltd. v.
Amrit Lal & Co., (2001) 8 SCC 397] , the issue before a
two-Judge Bench of this Court was whether the Court of
Rent Controller constituted under the Delhi Rent Control
Act, 1958, or the ordinary civil court would have the
jurisdiction to decide the eviction proceedings instituted by
the landlord against the tenant. Section 3 was amended to
exclude tenancies whose monthly income exceeded Rs 3500
from the application of the Delhi Rent Control Act. In that
case, the monthly rent was Rs 8625. The eviction petition
was filed by the landlord in 1985 before the amendment of
Section 3. While the petition was pending, Section 3 was
amended, which excluded such tenancies from the purview
of the Act. The High Court had held that in view of the
amendment, only the ordinary civil court and not the Rent
Controller would have jurisdiction over the eviction
Patna High Court CWJC No.13994 of 2021 dt.08-05-2025
6/8
proceedings. The tenant contended that since the tenant did
not possess any vested right under the Act before the
amendment came into force, the Rent Controller would not
have jurisdiction. The landlord contended that even if the
tenant did not possess any vested right, the landlord
possessed a vested right, and that in view of Section 6 of
GCA, the pending proceedings should continue under the
pre-amended Rent Control Act. This Court held that the
tenant did not have any vested right under the Act.
Furthermore, the Court also held that the landlord does not
have an accrued "right" under Section 14 of the Delhi Rent
Control Act. Section 14 of the Delhi Rent Control Act
provides a general protective right to the tenant against
eviction. The proviso to Section 14 lists specific grounds on
which the tenant could be evicted.
24. The Court held that since Section 14 is a
protective right conferred upon the tenant, it cannot be
construed to provide a right to the landlord. In this context,
it was observed : (Ambalal Sarabhai Enterprises case
[Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal & Co.,
(2001) 8 SCC 397] , SCC p. 409, para 22)
"22. ... The right which is sought to be
inferred as vested right is only under its proviso. Proviso
cannot enlarge the main section. When the main section is
only a protective right of a tenant, various clauses of its
proviso cannot be construed as it gives a vested right to a
landlord. The right, if at all could be said of the landlord,
flows only under the protective tenant's umbrella which
cannot be enlarged into a vested right of a landlord."
However, it was observed that Section 14
provides a "privilege" to the landlord, and if the privilege
has been accrued or acquired as required under Section 6
of GCA, then the Rent Controller would retain the
jurisdiction to decide the proceedings. It was held that on
the filing of the eviction petition, the privilege accrued to
the landlord in view of Section 6(c) of the GCA, and the
pending proceeding was saved.
18. The Apex Court dealing with the provisions of Section
2(h) of the RPwD Act, which defines discrimination, has
held as follows in paragraph no.56 of the Ravinder Kumar
Dhariwal (Supra):
"56. Section 3 of the RPwD Act states that persons with
disabilities must not be discriminated against on the ground
of disability, and the appropriate Government shall ensure
that persons with disability enjoy the right to live with
dignity. Section 2(h) of the RPwD Act defines
"discrimination" as follows:
"2. (h) "discrimination" in relation to disability, means
any distinction, exclusion, restriction on the basis of
disability which is the purpose or effect of impairing or
nullifying the recognition, enjoyment or exercise on an
equal basis with others of all human rights and
Patna High Court CWJC No.13994 of 2021 dt.08-05-2025
7/8
fundamental freedoms in the political, economic, social,
cultural, civil or any other field and includes all forms of
discrimination and denial of reasonable accommodation;"
19. Mental disability and discrimination has been
dealt in paragraph no. 59 of the said judgment. It has been
observed by the Apex Court in the said judgment that to
escape stigma and discrimination, persons with mental
health issues painstakingly attempt to hide their illnesses
from co-workers and managers. Disclosure of mental health
status carries with it the possibility of being demoted, laid
off, or being harassed by co-workers. Resultantly, persons
with mental health disorders deprive themselves of
workplace assistance and effective treatments that can
improve their mental health. The Apex Court had proceeded
to discuss the stigmatization of mental health disorder and
societal discrimination in paragraph no.81 and India being
signatory to CRPD, which is an International Human Right
Treaty of United Nation, intends to promote, protect and
ensure the full and equal enjoyment of human rights and
fundamental freedoms by all persons with disabilities.
Taking note of the provisions of CRPD in paragraph no.84
to 90, the Apex Court has finally concluded in paragraph
no.91 that discourse needs to expand to fundamental issues
of housing, education, support, and employment. The
present case is one such opportunity. To conclude that
disciplinary proceeding can constitute discrimination
against person disability, Section 47 comes into play in
relation to right of a person with mental disability against
employment discrimination. The Apex Court in the said
judgment after discussing at length the Act of different
countries has finally made analysis that Article 15 of the
Constitution of India states that State shall not discriminate
against any citizen on grounds only of religion, race, castes,
sex, place of birth or any of them and indirect
discrimination, as has been recognized by in the case of
Nitisha Vs. Union of India (2021) 15 SCC 125, in which
case, the conception of substantive equality that prevents
the international and Indian disability right regime held
that disciplinary proceeding against the appellant of the
said case to be discriminatory and must be set aside."
5. Law is well settled that a person with disability
cannot be treated along with the normal persons and as such,
this Court has no option than to direct the IGNOU to allow the
petitioner to complete her course, keeping in mind the
Patna High Court CWJC No.13994 of 2021 dt.08-05-2025
8/8
observation made in the order dated 26.09.2019 by the District
Appellate Authority in Appeal Case No. 47 of 2019, so that the
petitioner may not suffer in any manner considering the fact that
she was undergoing mental treatment from 08.04.2010 till
31.12.2018
and, as such, the petitioner could not appear in
theory ES-221, ES-222 and practical-1.
6. Once the petitioner completes her course, the
respondent State must not deny her to continue with his work.
7. Accordingly, the present writ petition stands
disposed of.
(Purnendu Singh, J)
Niraj/-
AFR/NAFR A.F.R. CAV DATE N/A Uploading Date 13.05.2025 Transmission Date N/A
[ad_2]
Source link