Case Note & Summary
The petitioner, a 55% disabled peon employed with the Zilla Parishad, Amravati, was promoted to Junior Assistant on 05.04.2006. He declined the promotion on 06.09.2006, citing his disability and inability to perform the duties of the promotional post. Consequently, on 18.12.2006, the employer posted him back as a peon and ordered cancellation of the Assured Career Progression (ACP) benefit that had been granted earlier, stating that the benefit would not be available from 06.09.2006. However, this order was not implemented for almost 11 years. The petitioner retired on 31.12.2017. Shortly before his retirement, on 25.09.2017, a recovery order was issued seeking to recover a sum of Rs.2,48,534 from his terminal dues. The petitioner challenged this recovery order by filing a writ petition. The High Court initially stayed the recovery on 07.11.2017 and later issued fresh notice for final disposal on 27.06.2018 after the respondents failed to appear. The employer did not appear even after subsequent service. The petitioner’s counsel argued that recovery after superannuation is impermissible as per the Supreme Court in State of Punjab v. Rafiq Mashi and High Court of Punjab and Haryana v. Jagdev Singh, and that the petitioner, being a disabled person, had not suppressed any facts. The Court noted that the ACP benefit was granted to avoid stagnation and that withdrawal was ordered but not effected immediately. Applying the Supreme Court precedents, the Court held that recovery after retirement is legally unsustainable. Additionally, the Court invoked Section 47(2) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, which prohibits discrimination in promotion on the ground of disability. The petitioner’s inability to function on the promotional post due to his disability could not be used to deny him the ACP benefit, as that would amount to discrimination. Therefore, the recovery was quashed, and the respondents were directed to release all benefits to the petitioner within two months.
Headnote
A) Service Law - Recovery After Superannuation - Recovery of excess payments made to an employee after retirement is impermissible - The Supreme Court judgments in State of Punjab v. Rafiq Mashi and High Court of Punjab and Haryana v. Jagdev Singh held that recoveries from retired employees are not allowed - Held that since the petitioner retired on 31.12.2017 and the recovery order was passed on 25.09.2017 but related to benefits granted in 2006, recovery after superannuation is unsustainable (Paras 4-5). B) Persons with Disabilities Act, 1995 - Section 47(2) - Denial of Promotion/ACP benefit on account of disability - The Act prohibits discrimination in promotion because of disability - The petitioner, a 55% disabled peon, could not function on the promotional post of Junior Assistant due to his disability, so declining promotion should not result in denial of ACP benefit - Held that the employer cannot use the disability to deny ACP scale, and recovery is violative of Section 47(2) (Paras 5-6).
Issue of Consideration
Whether recovery of ACP benefits from a retired employee, who was disabled and had declined promotion due to disability, is permissible under the law, especially in light of the Persons with Disabilities Act, 1995 and the Supreme Court's rulings on recovery after superannuation
Final Decision
Writ petition allowed. Impugned order dated 25.09.2017 quashed and set aside. Respondents directed to release all benefits to petitioner within two months. Rule made absolute.
Law Points
- Recovery of excess payments after superannuation is not permitted
- Persons with Disabilities Act
- 1995 Section 47(2) prohibits discrimination in promotion on account of disability
- Employer cannot deny ACP benefit to disabled employee who could not function on promotional post due to disability
