O.P. Sharma vs Delhi Transport Corporation
2000 Latest Caselaw 310 Del

ORDER

K. Ramamoorthy, J.

1. The petitioner has challenged the order dated 28.8.1990 retiring the petitioner from service of the first respondent/Corporation. A few facts necessary to be noticed are these.

2. The petitioner, who is physically handicapped with a deformity in his left leg was appointed as conductor in the first respondent/Corporation. Before appointing as conductor, he had acquired BA Degree.

In the year 1985, the petitioner had a severe paralytic attack and that aggravated his situation and had increased his disability. That made him sick for more than five months. On the 18th of March, 1987, the petitioner was subjected to a medical examination. The Medical Board in its report dated 25.3.1987/30.03.1987 found the petitioner unfit to perform the duty as a conductor and expressed the view that he could be assigned some other duty.

3. On the 6th of April, 1987, the petitioner made a representation to the first respondent/Corporation that he could be assigned duty as an Assistant Cashier. From June, 1986, according to the petitioner, he had been performing the duties of a Ticket Tally Clerk at Patpar Ganj Depot, Yamuna Vihar Depot, and Shahdara Depot-I. On the 28th of August, 1990, the order of retirement was passed.

4. On the 27th of November, 1990, the writ petition was presented in this Court. On the 16th of May, 1991, the DTC filed its reply to the CWP. On the 9th of July, 1991, the petitioner filed his rejoinder to the reply filed by the DTC. On the 3rd of February, 1992, the DTC had filed the details with reference to the engagement of Conductors as Ticket Tally Clerks in the event of the Conductors suffering from some disability, which is at page 115 of the paper book.

5. On the 4th of March, 1992, a statement was filed on behalf of the DTC giving the details with reference to the posts of Conductors and Assistant Cashier, which is at page 141 of the paper book. On the 23rd of April, 1992, the petitioner filed the objection to the details furnished by the DTC, which is at page 145 of the paper book. On the 29th of May, 1992, the Deputy Chief General Manager (Traffic) filed an affidavit, which is at page 153 of the paper book. On the 22nd of September, 1992, the petitioner filed counter affidavit to the affidavit filed by the Deputy Chief General Manager (Traffic). On the 7th of May, 1993, an additional affidavit was filed by the petitioner, which is at page 163 of the paper book. On the 18th of March, 1993, the respondent/DTC placed on record the orders passed by this Court in other writ petition Nos.891/92, 3893/92 & 2775/92 on the 17th of August, 1992 and 27th of January, 1993.

6. The learned counsel for the petitioner, Mr. B.S. Charya, submitted that the respondent/DTC ought to have assigned to the petitioner the post of Assistant Cashier or Ticket Tally Clerk.

7. The learned counsel for the respondent/DTC Mr. S.N. Bhandari, submitted that though the petitioner's disability is not disputed, but having regard to the fact that the cadre of Assistant Cashier and Ticket Tally Clerk being promotional categories carrying higher scales of pay, the petitioner was offered the post of a peon, which he declined to accept, and, therefore, the petitioner cannot seek to claim, as a matter of right, an alternative employment of his choice.

8. The petitioner and the respondents had placed on record the facts and the correctness of those details cannot be decided on mere affidavits. Even when the matter came up for hearing in this Court, at one stage, it was represented on behalf of the DTC that it was prepared to take the petitioner as a peon. But the petitioner declined to accept the offer.

9. The learned counsel for the petitioner, Mr. B.S. Charya, at a very late stage, came forward with an argument that the petitioner should be considered under the Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, and the DTC is bound to act in accordance with the provisions of that Act. The judgement of the Madras High Court in "N. Vijayakumar Vs. The High Court of Judicature at Madras rep. by its Registrar & Another", 1999 - 2 - L.W. 19 and the judgment of the Supreme Court in "Javed Abidi Vs. Union of India & Others", 1999 AIR SCW 111, were brought to my notice. The decision of this Court in "Hoshiar Singh Vs. Delhi Transport Corporation & Others", 1994 - II LLN 145 was also cited by Mr. B.S. Charya. Mr. B.S. Charya also brought to my notice the judgment of this Court in LPA No. 19/98 dated 4.3.1999 entitled as "Kunwar Pal Singh Vs. Delhi Transport Corporation & Another".

10. Mr. B.S. Charya, the learned counsel for the petitioner, referred to the judgment of the Supreme Court in "Bharat Singh Vs. Management of New Delhi Tuberculosis Centre, New Delhi & Others", with reference to the applicability of the 1995 Act to the pending proceedings. The judgment of the Supreme Court in "U.P. State Road Transport Corporation & Another Vs. Mohd. Ismail & Others", 1991 II LLJ 332 had also been referred to by Mr. B.S. Charya, the learned counsel for the petitioner. The learned counsel also referred to the judgment of the Supreme Court in "Ved Prakash Singh (Conductor) Vs. Delhi Transport Corporation & Others", dated 5.8.1991.

11. On the facts and circumstances of this case, the fact that the petitioner is under disability is not a matter of any dispute. The petitioner was also offered the post of peon and that was declined by the petitioner. The petitioner claims that he should have been given the post of Assistant Cashier or Ticket Tally Clerk. The DTC had given a clear picture about the employment of disabled persons by an affidavit filed on the 3rd of February, 1982. It is stated in paragraph 14 of the affidavit by DTC:

"It is emphatically denied that more than 200 Conductors who were declared medically unfit, were made to work on permanent basis, as "TICKET TALLY CLERKS". However, it is admitted that some of the CONDUCTORS who were declared unfit by the Medical Board of the respondent Corporation, were assigned light duty even after 1982 when the job of TICKET TALLY CLERK became a promotional one. Such assignment, was, on temporary basis. They were allowed to discharge light duty till such time their cases for the job below, were settled and decided by the respondent Corporation. The respondent Corporation submits that no CONDUCTOR, who is going to be declared medically unfit and is handicapped to the extent, the petitioner is, will be offered or otherwise accommodated on the job of "TICKET TALLY CLERK" which is a promotional post. In fact, some of the CONDUCTORS had sustained injuries during the course of their employment and they had to be assigned light duty on temporary basis. At present, no CONDUCT is performing the duties of a TICKET TALLY CLERK in Ticket Section of the respondent Corporation."

12. In the statement on behalf of the DTC filed on the 4th of March, 1992, it is stated:

"In the instant writ petition, the writ petitioner had claimed that though he has been declared medically unfit for the post of Conductor, yet, the post of "Ticket Tally Clerk", being an equivalent post, be given to him. It was pointed out that the post of "Ticket Tally Clerk" is a promotional one and carries a different pay scale and, as such, it is not possible to offer the post of "Ticket Tally Clerk" to the writ petitioner. When their Lordships pointed out to Shri B.S.Charya about this position of the matter, Shri B.S.Charya again stated that if that be not possible, the writ petitioner be offered the post of "Assistant Cashier", which according to him was the post equivalent to that of a "Conductor". The counsel for the respondent was directed to seek instructions in this connection.

Enquiries made from the respondent Corporation reveal that the post of "Assistant Cashier" is not equivalent to that of "Conductor" as the same is carrying pay scale of Rs. 330-8-370-10-400-EB-10-400 (revised Rs. 1200-30- 1440-EB-30-1800) which is a promotional post and is higher to that of Conductor's pay scale i.e. Rs. 260-6-290-EB-6-326-8-366-EB-8-390-10-400 (revised Rs. 950-20-1150-EB-25-1500). Apart from this, the respondent Corporation submits that the writ petitioner does not qualify for the prescription of the post of "Assistant Cashier" according to the Recruitment Rules for the post of "Assistant Cashier". The prescription is as under:

"Higher Secondary or an equivalent public examination organized and conducted by a recognised Board and at least one year experience of cash handling and maintenance of Accounts Books in reputable firm and preferably in Bank or in a transport undertaking."

This being the true and correct position, as per the statutory regulations, it is not possible to offer the position of "Assistant Cashier" to the writ petitioner. The other posts carry equivalent pay scale are technical jobs with technical qualifications which the petitioner does not possess. The respondent Corporation is willing to answer any further query as may be raised by the Hon'ble Court."

13. In the light of these facts, the petitioner cannot claim to be appointed as Assistant Cashier or Ticket Tally Clerk. The rulings, referred to above, are not very much relevant as they are easily distinguishable on facts. The cases under the Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 Act, referred to above, do not help the petitioner. The scope of the Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, is entirely different, and in "Javed Abidi Vs. Union of India & Others", 1999 AIR SCW 111, the Supreme Court directed the Central Government and the State Governments to implement the provisions of the Act. It is not necessary to discuss in detail the scope of provisions of that Act. The petitioner, in his writ petition, has challenged the Regulation 10 of DRTA (Conditions of Appointment & Service) Regulations, 1952 by virtue of which the impugned order was passed. The learned counsel for the petitioner, Mr. B.S. Charya, in the course of the argument, said that the petitioner did not want to press the point.

14. In view of the above, I do not find any substance in the writ petition. Accordingly the writ petition is dismissed. However, it shall be open to the petitioner to raise an industrial dispute, if so advised.

15. There shall be no order as to costs.