HONOURABLE SRI JUSTICE E.V.VENUGOPAL
WRIT PETITION No.28259 of 2019
ORDER:
1 The learned counsel for the petitioner submits that the petitioner was appointed as Driver in the respondent Corporation in the year 1997 and while he was discharging his duties as such, he was subjected to medical examination wherein he was declared unfit for the post of Driver. Hence the petitioner made representations to the respondent authorities to consider his case for providing alternative employment. Since no action was forthcoming, the petitioner filed Writ Petition No.40785 of 2018 and this Hon'ble Court directed the respondent authorities to consider the representation of the petitioner dated 06.10.2018 within six weeks and communicate the result of the same to the petitioner. As there was no response, the petitioner filed Contempt Case No.182 of 2019 whereupon the respondent authorities have served the impugned order dated 11.01.2019. The learned counsel for the petitioner submitted that since the petitioner sustained disability as contemplated under Section 2 (i) (o) of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short, 'the Act'), he may be shifted to some other section as contemplated under Section 47 of the Act and accordingly prayed to set aside the impugned proceedings dated 11.01.2019.
22 The learned standing counsel for the respondents submitted that upon examination by the Medical Board, the petitioner was declared unfit for A-1 category and also other categories due to "Pott's Spine with Gibbous Deformity with Collapsed D8 Vertebra". The petitioner was retired from service on medical grounds vide Depot Manager, Mahabubnagar office order No.P2/469 (02)/2018 - MBNR, dated 07.08.2018 with a request to avail additional monetary benefit amount in lieu of alternate post or employment to his dependents, subject to eligibility. It is further submitted that benefits under Section 47 of the Act are available only to those who are covered by the disability specified in Section 2 (i) of the Act. The petitioner may opt either retirement on medical grounds in terms of Circular No.PD-19/2015, dated 03.06.2015 and chose additional monetary benefit amount in lieu of alternate post or employment to his dependents, subject to eligibility. It is further submitted that the Government of Telangana, through G.O.Ms.No.42, TR&B (TR-II) dated 24.02.2018 granted exemption to TSRTC from the provisions of Section 20 of Rights of Persons with Disabilities Act, 2016, in respect of Drivers, Conductors and Mechanics including Artisans and accordingly prayed to dismiss the writ petition. The learned standing counsel relied upon the judgments of the erstwhile composite High Court in W.A.No.1376 of 2016 dated 27.11.2018, W.A.No.380 of 2017 and batch dated 3 05.06.2017 and the judgment of the Hon'ble Apex Court in C.A.No.3529 of 2017 and batch dated 23.02.2017. 3 Section 2 (i) of the Act defines 'disability' as under:
(i) "disability" means--
(i) blindness;
(ii) low vision;
(iii) leprosy-cured;
(iv) hearing impairment;
(v) locomotor disability;
(vi) mental retardation;
(vii) mental illness;
4 According to the petitioner he sustained disability as specified in Section 2 (i) (o) of the Act. Section 2 (i) (o) of the Act says about Locomotor Disability which means disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy. It is the admitted and undisputed case of the petitioner as well as the respondents that the petitioner sustained disability falling under Section 2 (i) (o) of the Act.
5 Section 47 of the Act says as under:
47. Non-discrimination in Government employment.--(1) No establishment shall dispense 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 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. (2) No promotion shall he denied to a person merely on the ground of his disability:
Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such 4 conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section. 6 From a cursory reading of the above provision it is manifestly clear that if any employee, after acquiring disability, is not suitable for the post he was holding, could be shifted to some other post with the same scale and service benefits.
7 However, the learned standing counsel for the respondents, by relying on the Circular No.PD-19/2015, dated 03.06.2015, submitted that the Government has introduced a scheme to provide employment to the spouse / child of medically unfit employees instead of providing alternative employment to themselves. Therefore, the petitioner was given the opportunity to exercise that option.
8 The learned standing counsel for the respondents further submitted that the Government had issued G.O.Ms.No.42 dated 24.02.2018 ordered to exempt Telangana State Road Transport Corporation from the provisions of Section 20 of the "Rights of Persons with Disabilities Act, 2016" in respect of Drivers, Conductors and Mechanics (including Artisans) subject to the condition that the TSRTC should continue to extend all the benefits i.e. Additional Monetary Benefit or compassionate appointment in case of retirements on medical invalidation. 5 9 It is an admitted fact that the petitioner was retired from service on medical grounds on 07.08.2018. The respondent authorities, in accordance with the instructions issued in Circular No.PD-19/2015, dated 03.06.2015 and also in view of the directions issued under G.O.Ms.No.42 dated 24.02.2018 whereunder the Telangana State Road Transport Corporation was exempted from the provisions of Section 20 of the Rights of Persons with Disabilities Act, 2016, have offered the petitioner either to chose additional monetary benefit amount in lieu of alternate post or employment to his dependents, subject to eligibility. The said G.O. has not been challenged. Therefore, I find no irregularity or illegality in the contentions advanced by the respondents. The respondents have followed the guidelines and instructions scrupulously, and issued the impugned proceedings, which, in my considered opinion does not warrant any interference in exercise of powers under Article 226 of the Constitution of India. 10 In the light of the above discussion, the writ petition fails and is accordingly dismissed. No order as to costs. 11 Miscellaneous petitions if any pending in this writ petition shall stand closed.
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E.V.VENUGOPAL, J.
Date: .02.2023 kvsn