be quashed and set aside.

(b) Communication rejecting the request of Gautam Budhaji Deore to appoint his son on compassionate basis based on GR dated 22.8.2005 (which communication is dated 8.8.2013, copy whereof is at Exhibit K page 47 of the OA), be quashed and set aside.

(c) It be declared that applicant no.1 is entitled for appointment on compassionate basis."

10. Mr. V. Giriraj, Principal Secretary to the Government of Maharashtra, Finance Department filed an affidavit-in-reply to oppose grant of any reliefs in O.A. No. 1006 of 2015. On perusal of the affidavit-in-reply, we are constrained to record that the pleas taken in the said affidavit are contrary to the rulings of the Apex Court as well as this Court, which were binding upon the State. Insensitivity, we are sorry to state, was writ large both in the contents as well as the tenor of the affidavit-in-reply.

11. In the affidavit-in-reply, the State surprisingly pleaded that the benefit under section 47 of the said Act was denied to Deore because he never sought for such benefits during his lifetime. The State pleaded that Deore's son Amol and his widow were not entitled to claim any monetary benefits on the basis of breach of section 47 of the said Act by the State. The State pleaded that since its action was in accordance with Rule 80 0f the said Rules, there was no further requirement of complying with the provisions of section 47 of the said Act. The affidavit relies upon the G.R. dated 22nd August 2005 to submit that the compassionate appointment is not available to legal heirs where employee is retired on invalid pension or on medical grounds. A stand is taken that benefit of section 47 of the said Act is available only where employee produces a Medical Certificate of having suffered disability to the extent of 40%. Finally, the Principal Secretary urged the MAT to dismiss the O.A. "with costs".

12. The MAT, relying upon the rulings of Apex Court in Kunal Singh vs. Union of India and anr. 2003 (4) SCC 524 : [2003(2) ALL MR 369 (S.C.)] and V. Sivamurthy v/s. State of Andhra Pradesh and ors. (2009) 1 SCC (L& S) 335, allowed the Original Application No.1006 of 2015 in the following terms:

"(a) (i) We declare that order dated 11.9.2009 Exhibit 'C' page 35 of invalid pension granted in favour of the applicant is contrary to law and the government servant Shri Gautam Budhaji Deore would be declared to be in the employment till he attains the age of superannuation on a supernumerary post and shall be entitled to one and all benefits by deducting payments already made.

(ii) The term "all benefits" will mean and include each and every benefit and perks available during employment or accruing after retirement, subject to the observations contained in order at clause (c) &(d).

(b) The text quoted in para 7 of the order viz. as contained in GR dated 22.8.2005 (Exhibit 'N' page 52 of OA) is quashed and set aside and the claimant will be eligible to apply for compassionate appointment in furtherance to the policy of the Government in vogue before issuance of GR with modification made through GR dated 22.8.2005 except the portion which is quashed.

(c) The applicant shall have to elect whether he wants the benefit of order clause (a) of (b) and submit suitable representation of exercise of their choice.

(d) As and when the representation electing the benefit either under clause (a) or (b) is furnished, the respondents shall take action and act thereupon within three months thereafter according to law.

(e) In the result, Original Application succeeds in the above terms.

(f) Parties are directed to bear own costs."

13. Mr. N.K. Rajpurohit, the learned AGP for the petitioners - State, has raised only following two issues in support of this petition:

A] That the protection under section 47 of said Act can be claimed only by the an employee, who acquires a disability during his service and not by his legal heirs. Mr.Rajpurohit points out that Deore during his lifetime, failed to claim any protection under section 47 of the said Act and therefore, the Original Application instituted by his legal heirs was not maintainable and the MAT exceeded its jurisdiction in entertaining the same and granting relief to the legal heirs; &

B] That there is no right, much less any vested right to seek compassionate appointment. To grant or not to grant compassionate appointment is a matter of State Policy. Therefore, if the State, as a matter of policy, takes a conscious decision not to grant compassionate appointment to legal heirs of employees, who retire on invalid pension, the MAT, clearly exceeded its jurisdiction in interfering with such a policy matter.

14. According to us, both the aforesaid contentions deserve rejection, both on facts as well as in law.

15. The expression "establishment" as it appears in section 47 of the said Act has been defined in section 2(k) of the said Act to include inter alia departments of Government. The Sales Tax Department with which we are concerned in the present case, was admittedly not a department which was exempted under the proviso to section 47(2) of the said Act. There was and there can be no serious dispute that the provisions of section 47 of the said Act applied to the Sales Tax Department though, the State, in the present case, has acted as if such a provision does not even exist on the statute book.

16. Section 47 of the said Act, statutorily injuncts the State from discriminating against the employees who acquire disability during their service. The section provides that no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service. The first proviso to section 47 (1) provides that, if an employee, after acquiring disability is not suitable for the post he was holding, such employee could be shifted to some other post with the same pay scale and service benefits. The second proviso, goes even further and provides 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.

17. Since, in the present case, there is no dispute that the Sales Tax Department constitutes 'establishment' for purposes of section 47 of the said Act and further, since there is also no dispute that Deore had acquired disability during his service, the petitioners order dated 11th September 2009 'dispensing with' services of Deore was ex-facie in defiance of the statutory mandate of section 47 of the said Act. In the facts of the present case, the petitioners were obliged to retain Deore on a supernumerary post, until suitable post was available or until Deore attained the age of superannuation whichever was earlier. Instead, the petitioners, quite insensitive to the mandate of section 47 of the said Act chose to 'dispense with' the services of Deore.

18. The MAT, in the impugned judgment and order has quite correctly relied upon Kunal Singh [2003(2) ALL MR 369 (S.C.)] (supra), which decision, in our opinion, applies on all fours to the facts and circumstances of the present case.

19. In Kunal Singh [2003(2) ALL MR 369 (S.C.)] (supra), the appellant, a Constable in Special Service Bureau (SSB), when on duty suffered an injury in his left leg which had to be amputated. The Medical Board declared him to be permanently incapacitated for service. Therefore, his services were terminated but by reference to Rule 38 of CCS (Pension)Rules 1972, he was granted invalid pension. His challenge before the High Court, where, he had not raised any plea on basis of section 47 of the said Act, failed. The Apex Court permitted the appellant to raise plea on basis of section 47 of the said Act and allowed his appeal.

20. The Apex Court in Kunal Singh [2003(2) ALL MR 369 (S.C.)] (supra) noted that an employee who acquires disability during his service, is sought to be protected under section 47 of the said Act specifically. Such employee, acquiring disability, if not protected, would not only himself suffer, but possibly all those who depend on him would also suffer. The very frame and contents of section 47 clearly indicate its mandatory nature. The very opening part of the section reads "no establishment shall dispense with, or reduce in rank, an employee who acquires disability during his service". The section further provides that an employee after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits; If it not possible to adjust the employee against any post he will be kept on a supernumerary post until the suitable post is available or he attains the age of superannuation, whichever is earlier. Section 47 contains a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing a provision of a social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and parlayses the purpose of the Act. Language of section 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service.

21. The Apex Court in Kunal Singh [2003(2) ALL MR 369 (S.C.)] (supra) specifically rejected the contention that receipt of invalid pension under Rule 38 of CCS (Pension) Rules, 1972 was sufficient to deny the employee acquiring disability during service the benefit under section 47 of the said Act. In this regard the Apex Court observed thus:

"11. We have to notice one more aspect in relation to the appellant getting invalidity pension as per Rule 38 of the CCS Pensions 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 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."

12. Merely because under Rule 38 of CCS (Pension) Rules, 1972, the appellant got invalidity pension is no ground to deny the protection, mandatorily made available to the appellant under Section 47 of the Act. Once it is held that the appellant has acquired disability during his service and if found not suitable for the post he was holding, he could be shifted to some other post with same pay scale and service benefits; if it was not possible to adjust him against any post, he could be kept on a supernumerary post until a suitable post was available or he attains the age of superannuation, whichever is earlier. It appears no such efforts were made by the respondents. They have proceeded to hold that he was permanently incapacitated to continue in service without considering the effect of other provisions of Section 47 of the Act."

22. In Ashwini A. Desai vs. Chattrapati Shivaji Maharaj General Hospital (Writ Petition No. 3545 of 2005 decided on 5th August 2005) , a Division Bench of this Court comprising A.P. Shah and Dr. D.Y. Chandrachud JJ (as Their Lordships then were) invoked section 47 of the said Act to reinstate a midwife, afflicted with a chronic mental condition, who, was retired from service on such ground and given full pensionary benefits. The Division Bench held that section 47 of the Act incorporates the principle of reasonable accommodation which provides for various measures to prevent discrimination against the disabled persons employed in establishments covered by the Act. Provisions of section 47 are in addition to the provisions relating to employment rights of persons with disabilities and lays down a salutary rule that an employee acquiring disability during the employment shall not be terminated or reduced in rank. The mandate of section 47 is clear that an employee who has suffered disability during the employment is entitled to protection of that section.

23. Further, in Ashiwini A. Desai (supra) the Division Bench held that merely because the petitioner got invalidity pension is no ground to deny protection mandatorily made available to the petitioner under section 47 of the Act. Once it is held that the petitioner has acquired disability during her service and if found not suitable for the post she was holding , she can be shifted to some other post with same pay scale and service benefits; if it is not possible to adjust her against any post, she can be kept on a supernumerary post until a suitable post is available or she attains the age of superannuation whichever is earlier.

24. As noted earlier, in the affidavit-in-reply on behalf of the State, the Principal Secretary (Finance) had raised a contention that no benefit under section 47 of the said Act is available to an employee, unless, the employee establishes that he was suffering from not less than 40% of any disability as certified by medical authorities. Although, it does not appear that such a contention was pressed before the MAT, we are constrained to note that such a contention was expressly rejected by the Division Bench in Ashwini Desai (supra). The objection raised in the affidavit with regard to 40% disability is in the context of section 2(t) of the said Act which defines expression "person with disability". The Division Bench, in no uncertain terms has held such contention is untenable because in the case of before the Division Bench, the appellant was an employee who had acquired 'disability' within the meaning of section 2(i) of the said Act and the appellant was not "a persons with disability" as defined under section 2(t) of the said Act. In any case, even on facts, in terms of the Medical Certificates produced by Deore as also forwarded by the Medical Board to the State, there was no doubt whatsoever that the disabilities suffered by Deore were almost to the extent of 100% and not just 40%. The very raising of such defences, which have, in the past, been expressly rejected by this Court and that too, in a matter of the present nature, indicates the extent of insensitivity with which the State has considered the case of Deore.

25. Yet another Division Bench of this Court in Patel Suleman Gaibi Vs. State of Maharashtra and anr., 2015 (3) Mh.L.J. 855 : [2015(2) ALL MR 867], has noted that the genesis of the said Act is in the Economic and Social Commission for Asian and Pacific Region convened meet at Beijing in December 1992 in order to launch the Asian and Pacific Decade of Disabled persons 19932002. In that meeting, the Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and the Pacific Region came to be adopted. India being a signatory to the Proclamation, was obliged to enact a suitable legislation to provide for persons with disabilities, equal opportunities, protection of rights and full participation. Accordingly, the Parliament enacted the said Act which came into force on 7 February 1996.

26. In the interpretation of the provisions of the said Act, both the Apex Court as well as this Court has imported the concept of "reasonable accommodation". This concept mandates moving beyond respecting a difference to actually accommodating the difference. In fact, in Ashok Kumar Gupta vs. State of U.P. 1997 (5) SCC 201, the concept of reasonable accommodation has been recognized as integral part of concept of equality under Article 14 of the Constitution of India. Further since such concept promotes dignity of the individual, the same has been accepted as one of the facets of Article 21 of the Constitution of India as well.

27. In Deaf Employees Welfare Association and anr. V/s. Union of India and anr. (2014) 3 SCC 173 : [2014(1) ALL MR 925 (S.C.)], the Apex Court invoked the provision of Article 2 of the U.N. Convention on Protection and Promotion of the Rights and Dignity of the Persons with Disabilities, 2008 to which India is a signatory. Article 2 of the Convention inter alia defines 'discrimination on the basis of disability' means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including "denial of reasonable accommodation".

28. The concept "reasonable accommodation" was defined to mean necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms. The Apex Court, in the said case, was dealing with discrimination inter se between deaf and dumb persons one one hand and the visually impaired on the other. The Apex Court held that the human dignity of a deaf and dumb person is harmed when he is marginalised, ignored or devalued on the ground that the disability he suffers is less than a visually impaired person. Such comparison of disabilities without any rational basis violates Article 14 and 21 of the Constitution of India.

29. In facts of the present case, 'insensitivity' was a writ large in the actions of the State. To begin with Deore's services were 'dispensed with' in defiance of the mandate of 47 of the said Act. There was delay in consideration of Deore's repeated representations. There was delay even in processing proposal for payment of any invalid pension or commutation of 1/3rd pension. The representation made by Deore's widow and son were rejected after much delay and by means of non speaking orders. Deore's widow and son were forced to institute two original applications before M.A.T. to seek redressal. The affidavits filed in the original application raised untenable defences, which had already suffered rejection in similar matters. This was certainly not the manner in which State should have treated its employee who suffered disabilities after rendering almost 30 years of services. The fact that the employee in the present case belong to weaker sections of society, i.e., a Member of the Scheduled Caste community, only enhances the gravity of insensitivity on the part of the State.

30. Mr. N.K. Rajpurohit, made no submission in defense of the State's action in "dispensing with" Deore's services in defiance of the mandate of section 47 of the said Act. Mr. Rajpurohit also made it clear that the State was not pleading any bar of limitation. But Mr. Rajpurohit only contended that the legal heirs of Deore lacked locus standi to complain about any discrimination meted out to Deore. Mr. Rajpurohit seems to suggest that since such grievance was not made by Deore during his lifetime, the State stands absolved in the matter.

31. Such contention is absolutely untenable. In fact such contention seethes with insensitivity and bureaucratic apathy. The records bears out that Deore, between the dates on which his services were dispensed with and upto his demise on 12th June 2013 made repeated representations protesting against the State's action. Though the State has chosen to ignore, we cannot ignore the fact that throughout this period Deore was bed ridden and could not perform even the usual bodily functions except with the assistance of his wife and children. During most of this period, the State not only ignored the Deore's repeated representations but did not even expeditiously process the proposals for payment of invalid pension or commutation of pension to him and his family. During most of these period, the State did not even bother to respond to Deore's desperate pleas that at least his son Amol be considered for compassionate appointment.

32. After all these, the State cannot be heard to urge that Deore's widow or son lack locus standi to complain about the patent discrimination meted out to Deore. It is necessary to note that section 47 of the said Act casts a statutory mandate on the State not to discriminate against its employees who suffer from disability in the course of their employment. The State, after having acted in defiance of such statutory mandate cannot be absolved, only because the discriminated employee was physically, mentally and even financially disabled from approaching the Court of the Tribunal in his lifetime. The discrimination meted out to Deore, did not affect Deore alone, but caused untold misery to his family members as well.

33. Such a plea ignores the legal position that section 47 of the said Act casts a mandate on the State not to discriminate against its employees who acquires disability during service. In such matters, there is no question of employee asserting or claiming any rights under section 47 of the said Act. Section 47 imposes a statutory mandate upon the State not to discriminate. Such statutory mandate cannot be avoided by raising specious plea that the employee concerned has not complained about the obvious discrimination meted out to him, whilst he was in service or during his lifetime.

34. Besides, the representations made by Deore, very clearly complain about discrimination meted out to him. Merely because Deore may not have made specific reference to section 47 of the said Act, that, by itself, does not absolve the State which was primarily responsible for avoiding any discrimination in such matters. The State failed to appreciate that Deore was admittedly inflicted with Quadriparesis resulting in incapacity from the use of his four limbs. To deny Deore relief merely on the ground that his representations made no specific reference to section 47 of the said Act is a contention which we can neither accept nor appreciate. In Kunal Singh [2003(2) ALL MR 369 (S.C.)] (supra) the plea on basis of section 47 of the said Act was never raised by the employee who suffered from disability in representations before the Government or even before the High Court. However, since the facts were not in dispute, the Apex Court, permitted the raising of such plea for the first time before the Apex Court and granted relief to the employee. There is absolutely no merit in the plea raised by Mr. Rajpurohit.

35. In the facts of the present case, the State, chose to ignore all relevant considerations and treat Deore's case with unreasonability and insensitivity. In the Original Application, there are pleadings, which have not been denied by the State to the effect that Deore belonged to Mahar community, i.e., Scheduled Caste community. There are pleadings that Deore has yet another son Rahul, who is suffering from Meningitis and in that sense physically challenged. There are pleadings that Deore had an unmarried daughter and had expressed serious concerns about her welfare. There are pleadings regards Deore's medical conditions and the expenses of treatment and surgeries. There are pleadings that Deore had put in almost 30 years of faithful service, before he was disabled on account of the accident whilst on his way to the office. The actions of the State in the present case were not only in defiance of the mandate of the said Act but also constitutional provisions enshrined in Articles 14,19 and 21 of the Constitution of India.

36. In Rajive Raturi v/s. Union of India and ors., (2018) 2 SCC 413, the Apex Court has traced the provisions of the said Act to Articles 14, 19 and 21 of the Constitution of India. The Apex Court has also made reference to Article 41 of the Constitution and the 73rd and 74th Amendment of the Constitutional Amendments in the context of the provisions of the said Act. All this relevant considerations were completely ignored by the State in the present matter. Apart from the untenability of the State's contentions, even the conduct of the State dis-entitles to any equitable reliefs under Article 226/227 of the Constitution of India.

37. Even the second contention raised by Mr. Rajpurohit is directly answered by the Apex Court in V. Sivamurthy (supra). Therefore, even the very raising of such a contention, is quite unfortunate.

38. In V. Sivamurthy (supra) the Apex Court was considering challenge to the judgment of the Full Bench of the Andhra Pradesh High Court holding that there can be no appointment on compassionate grounds in cases other than death or a Government servant in harness, and that any scheme for compassionate appointment on medical invalidation of a Government servant, is unconstitutional, being violative of Article 16 of the Constitution of India.

39. In the aforesaid regard, the Apex Court held that when compassionate appointment of a dependant of a government servant who dies in harness is accepted to be an exception to the general rule, there is no reason or justification to hold that an offer of compassionate appointment to the dependant of a government servant who is medically invalidated, is not an exception to the general rule. In fact, refusing compassionate appointment in the case of medical invalidation while granting compassionate appointment in the case of death in harness, may itself amount to hostile discrimination. While being conscious that too many exceptions may dilute the efficacy of Article 16 and make it unworkable, the Apex Court was of the considered view that the case of dependants of medically invalidated employees stand on an equal footing to that of dependants of employees who die in harness for the purpose of making an exception to the rule. For the very reasons for which compassionate appointments to a dependant of a government servant who dies in harness are held to be valid and permissible, compassionate appointments to a dependant of a medically invalidated government servant have to be held to be valid and permissible.

40. The Apex Court also disapproved the reasoning of the Full Bench of the Andhra Pradesh High Court that "death stands on a higher footing when compared to sickness" by holding that the inference that compassionate appointment in case of medical invalidation cannot be equated with death-in-harness cases , as medical invalidation is not of the same degree of importance or gravity as that of death, is untenable. The Apex Court noted that the Full Bench lost sight of the fact that when an employee is totally incapacitated (as for example when he is permanently bedridden due to paralysis or becoming a paraplegic due to an accident or becoming blind) and the services of such an employee is terminated on the ground of medical invalidation, it is not a case of mere sickness. In such cases, the consequences for his family may be much more serious than the consequences of an employee dying-in-harness. When an employee diesinharness, his family is thrown into penury and sudden distress on account of stoppage of income. But where a person is permanently incapacitated due to serious illness or accident, and his services are consequently terminated, the family is thrown into greater financial hardship, because not only the income stops, but at the same time there is considerable additional expenditure by way of medical treatment as also the need for an attendant to constantly look after him. Therefore, the consequences in case of an employee being medically invalidated on account of a serious illness/accident, will be no less, in fact for more than the consequences of death-in-harness. Though generally death stands on a higher footing than sickness, it cannot be gainsaid that the misery and hardship can be more in cases of medical invalidation involving total blindness, paraplegia serious incapacitating illness etc.

41. The aforesaid ruling of the Apex Court affords a complete answer to Mr. Rajpurohit's second contention.

42. There may be no right or vested right to seek compassionate appointments in the absence of any policy framed by the State. However, this is not a case where there is no policy in place. Once, a policy is in place, the MAT, was justified in examining whether such policy was consistent with the constitutional provisions or whether, such policy was arbitrary or irrational. If the State formulates policies which are itself discriminatory or arbitrary, then, the State cannot claim immunity from judicial review on the ground that the Courts and Tribunals normally do not interfere with the matters of policy.

43. Similar contention was rejected by the Apex Court in State of Madhya Pradesh and ors. v/s. Mala Banerjee - (2015) 7 SCC 698, by holding that where policy is contrary to law, or in violation of constitutional provisions, or is arbitrary or irrational, the Courts must perform their constitutional duty by striking it down. This was a case where the State was unable to explain why it chose to deny the teachers the benefit of 2nd Kramonnati Scheme (2nd Higher Pay Scale on completion of 12 and 24 years of service) while granting this benefit to all other employees and thus discriminated against them and violated their fundamental rights enshrined in Articles 14 and 16 of the Constitution of India.

44. The MAT, in the present case, has not interfered with the policy of compassionate appointment. The MAT, has only struck down the portions of G.R. dated 22nd August 2015 , to the extent they discriminated against the legal heirs of the employees who suffered from disability whilst in service and were forced to retire on invalid pension. The MAT, in effect, struck down the portion of the G.R. dated 22nd August 2005 to the extent the same was found to be in conflict with the provisions of Articles 14, 16 and 21 of the Constitution of India. The impugned judgment and order is entirely in consonance with the ruling of Apex Court in V. Sivamurty (supra). Accordingly, there is no case made out to interfere with the impugned judgement and order.

45. Finally, it is also necessary to note that the MAT, in the present case, has not granted any blanket relief to the respondents. The MAT has declared order dated 11th September 2009 by which the services of Deore were "dispensed with" by the petitioners in open defiance of the provisions of section 47 of the said Act as well as several decisions of the Apex Court and this Court as contrary to law and directed payment of all benefits to legal heirs of Deore, as, Deore, might have been entitled to had the petitioner obeyed the statutory mandate. The MAT, has however, taken care to provide for deductions proportionate to the payments which Deore or his legal heirs may have already received by way of invalid pension etc. Similarly, the MAT has only given the respondents an option to elect whether they want benefit in terms of prayer clauses (a) or (b) of the operative portion of the impugned judgment and order.

46. Therefore, whilst dismissing this petition, we direct the petitioners State to implement the MAT's impugned judgment and order dated 7th August 2018 within a period of one month from today and report compliance by filing an affidavit latest by 3rd December 2018.

47. This petition is therefore, dismissed in the aforesaid terms. Since, no notice was issued to the respondents, we refrain from awarding costs.

Petition dismissed.