Rajasthan High Court – Jaipur
Sunil Kumar Gupta S/O Shri Nemi Chand … vs State Of Rajasthan on 9 July, 2025
Author: Mahendar Kumar Goyal
Bench: Mahendar Kumar Goyal
[2025:RJ-JP:24577]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 9277/2021
Sunil Kumar Gupta S/o Shri Nemi Chand Gupta, Aged About 53
Years, R/o Anurudh Nagar, Bharatpur (Rajasthan)
----Petitioner
Versus
1. State of Rajasthan, Through Secretary, Government of
Rajasthan, Rural Development and Panchayati Raj
Department, Secretariat, Rajasthan, Jaipur.
2. Chief Executive Officer, Zila Parishad, Bharatpur,
Rajasthan.
3. Commissioner Agriculture, Agriculture Department,
Government Of Rajasthan, Pant Krishi Bhawan, Jaipur,
Rajasthan.
----Respondents
For Petitioner(s) : Mr. C.P. Sharma assisted by
Mr. Saddik Khan
For Respondent(s) : Mr. B.S. Chhaba, AAG assisted by
Mr. Aniket Beniwal,
Dr. Sajit Jakhar.
Mr. Kesar Singh Shekhawat, AGC
assisted by
Mr. Aditya Sharma
HON’BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
Judgment / Order
ORDER RESERVED ON : : 03.07.2025
ORDER PRONOUNCED ON : : 09.07.2025
At the outset, learned counsel for the petitioner confines this
writ petition qua the prayer no.(a) and (d) and does not press the
remaining prayers.
The undisputed relevant facts are in a very narrow compass.
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The petitioner was appointed as Junior Engineer in the
respondent no.3-Department on 01.07.1995 and was promoted as
Assistant Engineer. During his service, on 16.11.2013, he suffered
a brain hemorrhage resulting into paralysis in right side of the
body. Since then, he is bedridden. Under an interim order of this
Court dated 20.03.2025, the petitioner was examined by a Medical
Board, which, as per its certificate dated 02.04.2025, found him to
be suffering from 80% disability. In view of aforesaid, it is not
disputed by either of the parties that the petitioner has been
rendered disabled to discharge his official duty and as of now, he
is unable to do official work of any nature.
This writ petition is filed by the petitioner alleging that
despite availability of the protection to him under Section 20(4) of
the Rights of Persons with Disabilities Act, 2016 (for short, ‘the Act
of 2016’), the respondents have not paid him salary and other
service benefits for the period from 12.04.2018 to 30.06.2018 and
thereafter from 19.01.2019 till date.
Learned counsel for the petitioner Shri C.P. Sharma, inviting
attention of this Court towards provisions of Section 20(4) of the
Act of 2016, would canvass that since, the petitioner has incurred
disability during his service and is rendered unable to discharge
his official duty as Assistant Engineer or any other duty, he is
entitled for the salary and other service benefits till he is able to
do so or till he attains the age of superannuation. He further
submits that he is also entitled for all the retiral benefits after
attaining the age of superannuation. He, therefore, prays that the
writ petition be allowed in terms thereof.
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Per contra, Shri Basant Singh Chhaba, learned Additional
Advocate General appearing for the respondents, opposing the
prayer, made two fold submissions. Firstly, relying upon second
proviso to sub-section (4) of Section 20, he submits that the
benefit under Section 20(4) is available only to the employee who
is partially disabled and not in the cases wherein, he/she is
completely disabled as he cannot be adjusted against any suitable
post. He submits that since, in the instant case, indisputably, the
petitioner is rendered completely disable to discharge any work,
he is not entitled for the salary or other service benefits. His
second submission is based on availability of alternative remedy.
Inviting attention of this Court towards the provisions of Section
23 of the Act of 2016, he submits that any person aggrieved with
the non-compliance of the provisions of Section 20, may file a
complaint with the Grievance Redressal Officer who is under an
obligation to take up the matter with the establishment for
corrective action. Shri Chhaba submits that under sub-section (4)
of Section 23, if the aggrieved person is not satisfied with the
action taken on the complaint, he may approach the District Level
Committee on disability which has been constituted by the State
Government vide order dated 09.01.2020, a copy whereof has
been submitted for perusal of this Court. Further, the learned AAG
submits that under Section 80 of the Act of 2016, the State
Commissioner is also empowered to take care of grievance of the
petitioner who has been bestowed with same powers as that of a
civil court under Section 82 of the Act. Learned counsel submits
that since, the petitioner has filed this writ petition without
exhausting the aforesaid alternative remedies, it is not
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maintainable. He, therefore, prays for dismissal of the writ
petition.
Heard. Considered.
As already observed, the facts are not in dispute that while
in service, the petitioner has incurred disability which has
rendered him completely incapable to discharge his official duty or
work of any nature with the respondents. In such circumstances,
Section 20(4) of the Act of 2016 comes into play which reads as
under:
“20. Non-discrimination in employment:-
(4) No Government establishment shall dispense with
or reduce in rank, an employee who acquires a disability
during his or her service:
Provided that, if any employee after acquiring
disability is not suitable for the post he was holding, shall
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.”
The aforesaid provisions, in no uncertain terms, provide that
no action prejudicial to a government servant shall be taken by
any government establishment who acquires a disability during
his/her service. It further provides that if an employee after
acquiring disability is not suitable for the post he was holding, he
shall be shifted to some other post with the same pay scale and
service benefits and if it is not possible to adjust the employee
(D.B. SAW/424/2024 has been filed in this matter. Please refer the same for further orders)
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[2025:RJ-JP:24577] (5 of 14) [CW-9277/2021]against any post, he may be kept on supernumerary post until a
suitable post is available for or until he attains the age of
superannuation, whichever is earlier. It is also clear from the
aforesaid provisions that the same are applicable irrespective of
whether the employee is partially disabled or completely disabled.
The second proviso unequivocally provides that if he is able to do
any kind of work, he will be adjusted against such post with the
same pay scale and service benefits otherwise, he has to be kept
on a supernumerary post till he attains the age of superannuation.
There is nothing in the second proviso to warrant a finding that
only a partially disabled employee is entitled for the protection
under Section 20(4) of the Act of 2016 and not the completely
disabled employee. In view of the aforesaid, the first contention
raised by the learned AAG does not merit acceptance and the
petitioner is held to be entitled for benefit under Section 20(4) of
the Act of 2016.
In the case of Bhagwan Dass & Anr. vs. Punjab State
Electricity Board-AIR 2008 SC 990, the employee, while in
service became totally blind on 17.1.1994 and resultantly, could
not attend the duty whereupon, a charge sheet was issued to him
initiating disciplinary proceeding for gross misconduct on account
of remaining absent without leave from January 18, 1994 till
13.9.1994 despite issuance of notices. Thereafter, the appellant-
employee requested the respondent-Board, vide letter dated
17.07.1996, to retire him from service explaining the reason for
his absence from duty and requesting to employ his wife in his
place. However, later on, the charge sheet against the appellant
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was withdrawn and he was retired from service despite
observation of the Director of the Board that “with regard to cited
subject, it is made clear that there are instructions of the Board on
which blind employee is not liable to be retired.”
Thereafter, the appellant filed an affidavit before the
concerned officers pleading therein that he had no knowledge that
there was no need for retirement of those who were disabled
during service and he sought retirement unknowingly. However,
the affidavit failed to evoke any response. The writ petition filed
by him along with his son did not find favour with the High Court.
However, in the appeal, their Lordships have, appreciating the
provisions of Section 47 of the Persons with Disabilities (Equal
Opportunity, Protection of Rights and Full Participation) Act, 1995,
which are pari materia with the provisions of Section 20(4) of the
Act of 2016, held as under:
“12. From the materials brought before the court by none
other than the respondent-Board it is manifest that
notwithstanding the clear and definite legislative mandate
some Officers of the Board took the view that it was not right
to continue a blind, useless man on the Board’s rolls and to
pay him monthly salary in return of no service. They
accordingly persuaded each other that the appellant had
himself asked for retirement from service and, therefore, he
was not entitled to the protection of the Act. The only material
on the basis of which the Officers of the Board took the stand
that the appellant had himself made a request for retirement
on medical grounds was his letter dated July 17, 1996. The
letter was written when a charge sheet was issued to him and
in the letter he was trying to explain his absence from duty. In
this letter he requested to be retired but at the same time
asked that his wife should be given a suitable job in his place.
(D.B. SAW/424/2024 has been filed in this matter. Please refer the same for further orders)
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[2025:RJ-JP:24577] (7 of 14) [CW-9277/2021]In our view it is impossible to read that letter as a voluntary
offer for retirement.
13. Appellant No.1 was a Class IV employee, a Lineman. He
completely lost his vision. He was not aware of any protection
that the law afforded him and apparently believed that the
blindness would cause him to lose his job, the source of
livelihood of his family. The enormous mental pressure under
which he would have been at that time is not difficult to
imagine. In those circumstances it was the duty of the
Superior Officers to explain to him the correct legal position
and to tell him about his legal rights. Instead of doing that
they threw him out of service by picking up a sentence from
his letter, completely out of context. The action of the
concerned Officers of the Board, to our mind, was
deprecatable.
14. We understand that the concerned Officers were acting
in what they believed to be the best interests of the Board.
Still under the old mind-set it would appear to them just not
right that the Board should spend good money on someone
who was no longer of any use. But they were quite wrong,
seen from any angle. From the narrow point of view the
officers were duty-bound to follow the law and it was not open
to them to allow their bias to defeat the lawful rights of the
disabled employee. From the larger point of view the officers
failed to realise that the disabled too are equal citizens of the
country and have as much share in its resources as any other
citizen. The denial of their rights would not only be unjust and
unfair to them and their families but would create larger and
graver problems for the society at large. What the law permits
to them is no charity or largesse but their right as equal
citizens of the country.
15. In light of the discussions made above, the action of the
Board in terminating the service of the disabled employee
(appellant No.1) with effect from March 21, 1997 must be
held to be bad and illegal. In view of the provisions of Section
47 of the Act, the appellant must be deemed to be in service(D.B. SAW/424/2024 has been filed in this matter. Please refer the same for further orders)
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[2025:RJ-JP:24577] (8 of 14) [CW-9277/2021]and he would be entitled to all service benefits including
annual increments and promotions etc. till the date of his
retirement. The amount of terminal benefits paid to him
should be adjusted against the amount of his salary from
March 22, 1997 till date. If any balance remains, that should
be adjusted in easy monthly installments from his future
salary. The appellant shall continue in service till his date of
superannuation according to the service records. He should be
reinstated and all due payments, after adjustments as
directed, should be made to him within six weeks from the
date of presentation of a copy of the judgment before the
Secretary of the Board.
16. In the result the appeal is allowed with costs quantified
at Rs.5,000/-.”
Thus, in the aforesaid case, the Hon’ble Apex Court, while
deprecating the action of the respondent-Board in maneuvering
the appellant to tender his resignation without informing of his
valuable right available under Section 47 of the Act, held him
entitled for the protection under Section 47.
A coordinate Bench of this Court has, in the case of Ummed
Singh vs. State of Rajasthan-2019 (4) RLW 3386, involving
identical controversy, held as under:
“3. I have considered the submissions. Section 20 (4) of the
Act of 2016 reads as under:-
“(4) No government establishment shall
dispense with or reduce in rank, an employee
who acquires a disability during his or her
service: Provided that, if an employee after
acquiring disability is not suitable for the post
he was holding, shall 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(D.B. SAW/424/2024 has been filed in this matter. Please refer the same for further orders)
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[2025:RJ-JP:24577] (9 of 14) [CW-9277/2021]until a suitable post is available or he attains
the age of superannuation, whichever is
earlier.”
4. From the perusal of the aforesaid it is apparent that the
Parliament while enacting the said Act and the aforesaid
section essentially intended that no government
establishment would dispense with services of an employee
who acquires disability during his service and have also
provided what has to be done if the employee is found to be
not suitable to perform his duties it proceeds to even come to
the extent of directing to keep such a disabled employee on a
supernumerary post.
5. A supernumerary post may be created for a suitable
person in any of the existing grade. It is essentially created
for accommodating a permanent officer thus it is a post
meant for that disabled employee alone. Hence, even if the
employee is not able to perform any work he will be deemed
to be treated as worker against the said supernumerary post
and his salary will be drawn from that post has to be
equivalent to that which he was holding prior to his acquiring
disability the post would thus get extinguished on the day
when the said disabled person attains superannuation.
6. Accordingly, it is directed that the petitioner shall be
deemed to be continuous in service against a supernumerary
post equivalent to that of a driver and his salary shall be
drawn against the said post and paid to him each month till
he attains superannuation whereafter he will be paid pension
in terms of the Rules of 1996. It has already come on record
that the petitioner was drawing salary from 2015 upto
February 2017 after he had acquired the disability and thus
this Court does not find any reasons coming forward for not
allowing the petitioner to draw salary till he attains
superannuation. No reasons have come forward for stopping
the salary of the petitioner from March 2017.
7. In view of the above, the contentions of the learned
Additional Advocate General to keep the petitioner as
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voluntarily retired is not made out and the same is rejected. It
is further directed taking into consideration all the aspects
that the petitioner would be entitled to all medical facilities
and reimbursement of treatment expenses as are available to
an employee in service. Taking into consideration the acute
condition of the petitioner, it is directed that the department
shall deposit his monthly salary and also make his
reimbursements of treatment expenditure each month without
fail and deposited the same in his bank account which shall be
obtained from his relatives after due verification. Similar view
has been taken by this Court is akin to what has been allowed
by the Supreme Court in the cases of Bhagwan Das & Anr.
Versus Punjab State Electricity Board, AIR 2008 Supreme
Court 990, Kunal Singh Versus Union of India & Anr., AIR
2003 Supreme Court 1623 and Tulcha Ram Versus The State
of Rajasthan & Ors. (S.B. C.W.P. No.4862/1998), decided on
25.03.2017.
8. Accordingly the writ petition is allowed.”
Therefore, view of this Court that the petitioner is entitled for
the salary and other service benefits under Section 20(4) of the
Act of 2016 stands fortified from the aforesaid precedents.
The second limb of submission of learned counsel for the
respondents as to non maintainability of the writ petition on the
ground of availability of efficacious and alternative remedy to the
petitioner, is misconceived and deserves to be rejected.
Neither the provisions of Section 23, nor the provisions of
Section 80 offer the petitioner an alternative and efficacious
remedy so as to non-suit him. Section 23(2) provides that if any
complaint is filed by any aggrieved person with the Grievance
Redressal Officer, he shall investigate it and shall take up the
matter with the establishment for corrective action. It does not
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reflect that such Grievance Redressal Officer has been bestowed
with any jurisdiction or power to deliver any verdict in the matter
and to get it enforced. He can only take up the matter with the
establishment for the corrective action. Although sub-section (4)
of Section 23 gives an opportunity to the aggrieved person, if
dissatisfied with the action taken on his/her complaint made under
Section 23(2), to approach the District Level Committee on
disability; but, while, the Act of 2016 is silent on the power and
jurisdiction of the District Level Committee on disability, the order
dated 09.01.2020 issued by the State Government and relied
upon by the learned counsel for the respondents, also does not
postulate any authority vested with the Committee to pass any
order or direction on the complaint of the aggrieved person
obliging the establishment to comply with the same. Under this
order, it can only make suggestions to the District Officer on the
appeal. Similarly, Section 80 of the Act of 2016 also does not
reflect any authority of the State Commissioner to issue any
direction to the establishment to ensure compliance of Section
20(4) or any mechanism to get it enforced. Reliance placed on
Section 82 by the learned Additional Advocate General is
misconceived and misplaced. It simply provides that for the
purpose of discharging his function under the Act, the State
Commissioner shall have the same powers as that of a Civil Court
while trying a suit in respect of matters enumerated thereunder
such as summoning and enforcing the attendance of witnesses,
discovery and production of a document, requisitioning any public
record or copy thereof from any Court or office, receiving
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affidavits and issuing commissions for the examination of
witnesses or public documents.
In the aforesaid circumstances, the remedy available under
Section 83 or under Section 80 is found neither efficacious, nor
alternative for the redressal of the grievance of the petitioner.
Moreover, not to entertain a writ petition in view of
availability of an alternative remedy is a self imposed restriction
by the writ Courts and it is not an absolute bar to the exercise of
this discretionary and equitable remedy. In the instant case, as
already observed, the petitioner has incurred disability during the
course of employment and has not been paid salary or any other
service benefits except clearing the medical bills for the last more
than five and a half years. Instead of ensuring compliance of the
salutary provisions contained under Section 20(4) of the Act of
2016, the petitioner has been dragged into this litigation which is
pending consideration for the last almost four years. In view
thereof, even otherwise also, this Court is not inclined to relegate
the petitioner to any other illusory remedy.
The aspect of maintainability of the writ petition can be
examined from another angle as well. The action/omission on the
part of the respondents in not making payment of salary and
other service benefits for the last about five and half years to the
petitioner, who is completely disabled and confined to bed, despite
his eligibility and entitlement for the same under Section 20(4) of
the Act of 2016 definitely amounts to violation of his fundamental
right to live with dignity which is one of the facets of right to life
and liberty guaranteed under Article 21 of the Constitution of
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India. For this reason also, this Court finds the writ petition to be
maintainable.
Resultantly, the writ petition is allowed with cost. The
respondents are directed to release due salary and other service
benefits to the petitioner. The arrears of salary and other benefits
shall be released within a period of four weeks from today with
interest @ 6% per annum failing which the interest shall be
leviable at the rate of 9% per annum after expiry of the period of
four weeks and the Officer(s) responsible for delay would bear the
enhanced interest component. The respondents are further
directed to pay to the petitioner salary on month to month basis
regularly and other service benefits in terms of Section 20(4) of
the Act of 2016 and in case of his retirement, he shall be released
all retiral benefits. The cost is quantified as Rs.25,000 which shall
be paid by the respondents to the petitioner within a period of four
weeks from today.
The aforesaid case is a classic case reflecting the insensitivity
and apathy of the respondents towards the plight of a disabled
person who has been denied benefit under the Act of 2016 by the
respondents for last about five and a half year without any
justification which frustrates the laud object of the enactment of
the Rights of Persons with Disabilities Act, 2016.
In the aforesaid factual context, this Court deems it just and
proper to issue a direction to the Chief Secretary, Government of
Rajasthan to issue necessary instruction/circular to all the
Government Departments to identify such disabled employees, if
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any, and to extend them benefit of Section 20(4) of the Act of
2016 in its letter and spirit, immediately.
The Additional Advocate General shall place copy of such
instruction/circular on record for perusal of this Court.
List the matter on 11.08.2025 to see compliance.
(MAHENDAR KUMAR GOYAL),J
RS/S-311
(D.B. SAW/424/2024 has been filed in this matter. Please refer the same for further orders)
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