Judgment:
Singh, C.J.
1. This civil special appeal is directed against the order of learned Single Judge dated 16th August, 2002 passed in S.B. Civil Writ petition No. 5797/1993.
2. The facts He in a narrow compass. The respondent was appointed as Aquatic Coach by the appellant-University on 5th June, 1976. He was also confirmed on the post of Aquatic Coach vide order of University dated 18th March, 1991 w.e.f. 5th June, 1976. While in service of the appellant-University, the respondent on 12th December, 1980 was commissioned in the Territorial Army. Periodically, he used to be called to serve with the Territorial Army in consonance with the exigencies of service. In course of time, the respondent was promoted as Major in the Territorial Army. On 30th June, 1990, the services of the respondent were requisitioned by the Territorial Army for 'Operation Rakshak'. Pursuant to the requisitioning of his services by the Territorial Army, the University relieved him on 21st June, 1990, but relationship of master and servant between the University and the respondent was not servered as he continued to be in the service of the University while he was called to discharge his duties with the Territorial Army in June, 1990. During the Operation Rakshak, the respondent appears to have sustained spinal injury. He was hospitalished and was advised undertaking sedentary duties. On 27th October, 1990, the respondent was relieved from the Territorial Army. Thereafter, on 30th October, 1990, the respondent rejoined his duties as Aquatic Coach in the Rajasthan University. In view of his ailment, the respondent was examined by a Medical Board appointed by the University. According to the Board, the respondent was a case of Prolapsed Inter Vertebral Disc L4-L5-S1. In view of the severity of his symptoms, it was recommended that he should be referred back to his treating surgeon for surgery or else, be should accept his disability. The Board opined that in the present state he was not fit for duties. After the report of the Board on 30th August, 1993, the Syndicate resolved as follows:-
'that maximum benefits admissible under rules may be given to Shri Goyal and he may be relieved from the University service as per the Government rules applicable in such cases.'
3. In consonance with the resolution of the syndicate, the respondent was retired from service. Feeling aggrieved by his retirement from service, the respondent filed a writ petition. The writ petition was allowed by the learned Single Judge on 16th August, 2002 on the ground that the respondent was not given any opportunity to have his say before he was retired from service by the University. The learned Single Judge allowing the writ petition vide the impugned order directed that the respondent should be restored to the post which he was holding at the time of his retirement viz. the post of Aquatic Coach. The learned Single Judge also directed payment of 50% of back wages on his reinstatement as Aquatic Coach. The appellant-University not being satisfied with the order passed by the learned Single Judge has filed the instant appeal.
4. We have heard Mr. C.K. Garg, learned Senior Advocate appearing for the appellant-University as also Mr. Rastogi learned counsel appearing for the respondent. We have considered the submissions of learned counsel for the parties. Though, it cannot be disputed that the respondent was suffering from Prolapsed Intervertebral Disc L4-L5-S1, but the fact remains that before the respondent was retired from service, no opportunity was retired from service, no opportunity was given to him to show that the respondent was capable of discharging his duties as Aquatic Coach or in any other alternative job. It is the basic principle of natural justice that in the event of an adverse action being taken against a person, he should be heard in the matter or given an opportunity to project his case. That opportunity was denied to the respondent. The order which was impugned by the respondent being in contravention of the principles of natural justice was rightly quashed by the learned Single Judge.
5. The Legislature by enacting the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short 'the Act of 1995') recognised the discrimination which was being meted out to the candidates suffering from disability at the stage of entry into service and those suffering from disability acquired after entry into service. Section 47 of the Act deals with the situation where an employee acquires disability after he enters service. It is interalia provided that no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service. This provision was meant to remove the discrimination between an employee who was not suffering from any disability and an employee acquiring disability during the service. Realising the hardship which an employee would suffer in case of his termination on ground of disability, the legislature intervened and made the aforesaid provision to eliminate discrimination and hardship. Thus, when the Legislature itself has recognised the discrimination which an employee who acquires disability suffers, the Court can certainly come to the rescue of such an employee, even without the help of Section 47 of the Act to remove the discrimination by directing reinstatement of an employee whose services are terminated/dispensed with in any manner whatsoever on account of disability acquired during service.
6. Though Section 47 of the Act in stricto-sensu is not applicable to the case of the respondent, as he had acquired disability earlier to the coming into force of the Act, the principle which has been embodied in Section 47 can always be applied and the respondent can be restored back to the position which he was holding before he was retired on account of the disability. Alternatively, the employee can be given an option to adjust the respondent in any other equivalent position, in case, the employee feels that it will not be appropriate to restore the respondent to the post which he was holding.
7. Since the appellant has passed the order of retirement in violation of the principles of natural justice, we are of the view that the learned Single Judge was entirely right in allowing the writ petition. We are conscious of the fact that it should he left to the discretion of the University whether it will adjust the respondent against the post of Aquatic Coach or it will adjust him in an alternative job of equal status. The discretion conferred by us on the University shall be exercised by it within a period of three weeks and an appropriate order shall be passed which shall be communicated to the respondents within the aforesaid period.
8. With the aforesaid observations, the appeal is disposed of.