Holding

Under Section 47 of the Persons with Disabilities Act, 1995, an employee who acquires mental illness cannot be compulsorily retired or have his rank reduced, and the High Court should have referred the matter to a Medical Board and decided it on merit; therefore, the order of compulsory retirement was set aside and the officer was to be treated as in service until superannuation with full salary and benefits.

Issues considered

Whether the High Court was justified in dismissing the writ petition as withdrawn without adjudicating the question of the officer’s alleged insanity.
Whether an employee who acquires mental illness, a disability under Section 2(i) of the Persons with Disabilities Act, 1995, can be compulsorily retired or have his rank reduced under service law.
Whether the authorities were required to refer the matter to a Medical Board and decide the case on its merits, possibly appointing an amicus curiae.
What salary, allowances and retirement benefits the officer is entitled to if the compulsory retirement order is set aside.

Legislation cited

Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995s. 2(i), s. 47

Subjects

disability discriminationcompulsory retirementmental illnessSection 47service lawIAS officermedical boardamicus curiaeadministrative law

Judgment

[2013] 8 S.C.R. 373

ANIL KUMAR MAHAJAN A
v.
UNION OF INDIA THROUGH SECRETARY, MINISTRY OF
PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS,
DEPARTMENT OF PERSONNEL AND TRAINING, NEW
DELHI AND OTHERS B
(Civil Appeal No. 4944 of 2013)
JULY 2, 2013
[G.5. SINGHVI AND SUDHANSU JYOTI
MUKHOPADHAYA, JJ.] C

Persons with Disabilities (Equal Opportunities, Protection
of Rights and Full Participation) Act, 1995 - s.2(i) ands. 47
and its first and second proviso - Officer in Indian
Administrative Service, declared insane in Departmental D
inquiry and compulsorily retired, after 30 years of service -
Administrative Tribunal dismissed the application of the
officer- High Court granted liberty to the counsel of the officer
to withdraw the petition with liberty to file the same through
next friend as the officer was insane - Held: High Court should E
not have allowed the counsel to withdraw the petition - The
Court should have referred the matter to Medical Board, and
if the officer was found to be insane, the Court should have
decided the matt~r on merit by appointing an advocate as
amicus curiae - Even if, it is presumed that the officer was F
insane, he could not have been removed from service in view
of s. 47, as insanity is one of the disabilities uls. 2(i) - The
respondents are directed to treat the officer continued in
service till the date of his superannuation - He is entitled to
full salary minus subsistence allowance and also full retiral G
benefits counting total period of service - Service Law.

The appellant joint Indian Administrative Service in
the year 1977. He was placed under suspension in the
year 1988. He had to move administrative Tribunal for
373 H
374 SUPREME COURT REPORTS [2013] 8 S.C.R.

A promotion and posting. Departmental inquiry was
initiated against him, alleging that he was mentally sick.
Allegations of indiscipline, irresponsibility and
misbehaviour were also made. After 11 years of inquiry,
finding was given that the appellant was insane and
B order of compulsory retirement was passed. The order
was challenged by the appellant before Administrative
Tribunal. The Tribunal dismissed the application. The
appellant then preferred writ petition. The High Court, on
the basis of submission of the counsel for the appellant
c that he sought to withdraw the petition with liberty to file
an appropriate petition through the next friend, as the
respondents had given a finding that the appellant was
insane, dismissed the petition as withdrawn.

Appellant challenged the order of the High Court on
D the ground that High Court did not decide the question
as to whether the appellant was insane, and if he was
insane, the Court could not have allowed the counsel to
withdraw the petition on the basis of instructions from an
insane person.
E
Allowing the appeal, the Court

HELD: 1. It is not the case of the respondents that
, the appellant was insane and in spite of that he was
F appointed as an IAS Officer in 1977. Therefore, even if it
is presumed that the appellant became insane, as held
by the Inquiry Officer, mental illness being one of the
disabilities under Section 2(i) of Persons with Disabilities
(Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995, u/s. 47 of the Act, it was not open
G 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
H service benefits. Further, if it was not possible to adjust
ANIL KUMAR MAHAJAN v. UNION OF INDIA THR. SEC., 375
MINISTRY OF PERS.,
the appellant against any post, the respondents ought to A
have kept the appellant on a supernumerary post until a
suitable post was available or, until the appellant attained
the age of superannuation whichever was earlier. [Para
18] [383-G-H; 384-A-B]
B
2. It was not open to the authorities to dispense with
the service of the appellant or to compulsorily 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 C
of the finding of Inquiry Officer. 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, 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. [Para 19] [384-B-D] D

3. 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 E
received for the period from the date of initiation of
departmental proceeding till the date of compulsory
retirement. The appellant shall also be provided with full
salary from the date of compulsory retirement till the date
of superannuation in view of the first and second provisc;> F
to Section 47 of the Act. If the appellant has already been
superannuated, he will also be entitled to full retiral
benefits counting the total period in service. [Para 20]
[384-G-H; 385-A-B]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. G
4944 of 2013.
From the Judgment and Order dated 20.04.2010 of the
High Court of Delhi at New Delhi in CW No. 2622 of 2010.
H
376 SUPREME COURT REPORTS [2013] 8 S.C.R.

A Manoj Swarup, Hiren Dasan, Dhirendra, Kr. Mishra, Sarla
Chandra, for the Appellant.

Brijender Chahar, Sunita Sharma, Kiran Bhardwaj, B.V.
Balaram Das, for the Respondents,
B The Judgment of the Court was delivered by

SUDHANSU JYOTI MUKHOPADHAYA, J. 1. Leave granted.

2. This appeal has been preferred by the appellant against
C 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:

"ORDER

D 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
E
insane person himself and notthrough the next friend.

In the circumstances, learned counsel for the
petitioner seeks to withdraw the petition with liberty to file
an appr.opriate petition through the next friend.
F
Dismissed as withdrawn with the liberty prayed for.

All the pending app/ic~tions are a/so disposed.•

3. The· aforesaid order has been challenged by the
G 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
H
J·t
'J

ANIL KUMAR MAHAJAN v. UNION OF INDIA THR SEC., 377
MINISTRY OF PERS., [SUDHANSU JYOTI MUKHOPADHAYA, J,)

not to have allowed the lawyer who received instructions A
from an insane person to withdraw the case.

4. In this case, it is not necessary to discuss all the facts,
E;)Xcept the relevant one, as mentioned hereunder:

The appellant joined the Indian Administrative Service B
(I.AS.) on 12th July, 1977. He alleged that while he was posted
as an Additional Secretary-cum-Editor 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 C
till further orders. Subsequently, the order of suspension was
'revoked on 24th February, 1990. He moved before the Central
Administrative Tribunal, Patna Bench, in O.A.No.288/1991
l?eeking a direction to the respondents. to promote him to the
selection grade from the date he became entitled with all the o
consequential benefits. The appellant contended that he has a
clean service record, except for the year 1985-86 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 E
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 1985-86 against which the
appellant's representation is still pending and directed the
respondents to consider his case in the next DPC for promotion
F
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 G
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 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 H
378 SUPREME COURT REPORTS [2013] 8 S.C.R.

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
B 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
C 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 pre.sent before the
inquiry.
D
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
E second charge was that while 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
F 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
G 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.

H 9. The appellant filed a representation on 25th February,
ANIL KUMAR MAHAJAN v. UNION OF INDIA THR. SEC., 379
MINISTRY OF PERS., [SUDHANSU JYOTI MUKHOPADHAYA, J.)

2000 to the respondents seeking voluntary retirement. He A
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 B
29th April, 2002. The representation of the appellant seeking
voluntary retirement was also rejected on the ground that he had
not qualified the minimum 20 years of service and thus as per
the respondents, he was not eligible for voluntary retirement.
c
10. After about 1"1 years the Inquiry Officer submitted the
report on 4th December, 2004. According to the appellan~ he
was not granted any opportunity of being heard and the Inquiry
Officer submitted an ex-parte report against him. The
suspension order seems to have been revoked by the D
respondents with effect from 23rd October, 1998.

11. A writ petition was filed by the appellant before the
High Court; wherein a counter-affidavit was filed and the
respondents took a plea that despite the revocation of the
suspension order of the appellant, he never joined the duties E
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 .F
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 G
compulsorily retired from service.

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 H
380 SUPREME COURT REPORTS [2013] 8 S.C.R.

A 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
B 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
c 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
0
only an advisory role to play. It was further urged that t'.le
disciplinary authority was not bound to accept the advice of
U.P.S.C. The Tribunal went into the aspects of the case but held
that in the context of the facts and circumstances of the present
E 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
F 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
G occasions and he refused to appear before the Medical Board.
Instead, he challenged the order of the Inquiry Officer calling
upon h m to appear before the Medical Board.

The Tribunal, further, observed that yet another reasen to
H hold the appellant is insane, i.e., his non-appearance before
ANIL KUMAR MAHAJAN v. UNION OF INDIA THR. SEC., 381
MINISTRY OF PERS., [SUDHANSU JYOTI MUKHOPADHAYA, J.]

the duly constituted Medical Board, which would necessarily A
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 dismissed the original application.
B
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 c
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 D
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
E
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
F
retirement was passed on 15th October, 2007.

16. The Persons with disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995
(hereinafter referred to as the 'Act, 1995') was enacted in the
year 1995 with the following statement of objects and reasons: G

(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;
H
I

38_2 SUPREME COURT REPORTS [2013] 8 S.C.R.

A (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, vis-
a-vis non-disabled persons;
B
(iv) to counteract any situation of the abuse and the
exploitation of persons with disabilities;

(v) to lay down a strategy for comprehensive
c 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."
D
Section 2(i) defines disability:

"Section 2(i) "disability" means-

(i) blindness;
E
(ii) low vision;

(iii) leprosy-cured;

(iv) hearing impairment;
F
(v) loco motor disability;

(vi) mental retardation;

(vii) mental illness;"
G
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:

H "47 Non-discrimination in Government
ANIL KUMAR MAHAJAN v. UNION OF !NOIA THR. SEC., 383
MINISTRY OF PERS., [SUDHANSU JYOTI MUKHOPADHAYA, J.]

employments. - (1) No establishment shall dispense A
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
8
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 C
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: o
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 E
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 F
was issued on 15th October, 2007. It is not the case of the
respondents that the appellant was insane and 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 G
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 H
384 SUPREME COURT REPORTS' [2013] 8 S.C.R.
' ' '

A 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
B earlier.
"
e:
1 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 th'e appellant or to ·compulsory retfre him from service. The
High Court also failed to notice the relevant fact and without
c going into the merit allowed the counsel to withdraw the writ
petition .merely on the basis of the finding of lnquify 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, in that case instead of dismissing the case as
D withdrawn, the matter should have been decided on merit by
appointing an Advocate as amicus curiae. •· ·
' ' ' ·,;·

20. It is informed at the.b·ar that in. normal course the
appellant would have superannuated from service on 31st July,
. E 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
F 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.Nci.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
G 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 ofcinitiation of~
departmental proceeding on the ground that he was suffering
H
ANIL KUMAR MAHAJAN v. UNION OF INDIA THR. SEC., 385
MINISTRY OF PERS., [SUDHANSU JYOTI MUKHOPADHAYA, J.J

from mental illness till the date of c~mpul~o;y retirement. The A
appellant shall also be provided with full salary from the 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 benefit~ counting the total period in B
service. The benefits shall be 'paid to the appellant within three
months, else the respondents will oe' 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 C
and directions but there shall be no order as to costs. ·-

K.K.T. Appeal allowed .

.. ~. - .
• • > " - ;-, I

-t,'

....
- ~ ' ....
. .. .

. ~-

.· ,' \

.. , - ...

. - -· - ..
' . . .. ·,

' ·; ·: .._,__-- ;\. -.

. ....; .