Shri Ram Phal vs Delhi Transport Corporation And ...
2001 Latest Caselaw 548 Del

ORDER

Dr. Mukundakam Sharma, J.

1. The present writ petition is filed by the petitioner seeking for a direction to the respondent to create supernumerary post for the petitioner in terms of the provisions of section 47 of the Persons with Disabilities Act, 1995 as well as circular dated 11.10.1996 with a further direction to pay salary and allowances to the petitioner in the scale of the Driver from the date of his premature retirement Along with all allowances due and payable with interest.

2. The petitioner was appointed as a Driver by the respondent Corporation. He was however, prematurely retired by the respondent under an order dated 5.3.1993 being medically unfit to perform his duties. Being aggrieved by the said order the petitioner preferred a writ petition in this court which was registered as C.W. 2154/1993. The said writ petition was disposed of by the Division Bench of this court by a judgment/order dated 13.9.1994. While disposing of the said writ petition the Division bench of this court considered the policy of the respondent of offering equivalent or lower post to those persons who were found medically unfit to perform duties which they were performing with the respondent Corporation. The Division Bench considered the said policy of the respondent Corporation and found that the said policy is applicable to the case of the petitioner and in terms thereof it was ordered that an offer of an equivalent or a lower post according to the roster be made to the petitioner within a period of 4 weeks and if the said offer is accepted by the petitioner who is prematurely retired then the appointment should be made within a period of 4 weeks. The operative portion of the said judgment is extracted below:-

"In view of the order of the Supreme Court in SLP 21653/1993, keeping in view the policy of the respondent Corporation to offer equivalent or lower post, we direct that the offer of an equivalent or lower post be made within a period of 4 weeks, and if the same is accepted by the employee who is prematurely retired, then the appointment shall be made within a period of four weeks."

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In the instant case before us, there is no dispute that no offer of alternative employment was made by the DTC to the petitioner. In this view of the matter, the petitioner would be entitled to the pay to which he would have received had he been made an offer of employment in accordance with the policy for the period between the date of his premature retirement and date of offer. The back wages however, would be paid conditional upon the petitioner joining the service with DTC as a Peon.

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The petitioner would be entitled to the pay of Peon/Store Attendant from the date of his premature retirement till the date offer is made provided he accepts the offer made."

3. Pursuant to the aforesaid order of Division Bench an offer was made to the petitioner for a post of Peon with the Corporation and the said offer was accepted by the petitioner and he joined as a Peon on 31.3.1995 in the scale of Rs. 775-1025. Now the petitioner has filed the present writ petition seeking for the aforesaid reliefs. Counsel appearing for the petitioner submitted that at the time of the order of premature retirement the petitioner was drawing the basic pay of Rs. 1300/- in the scale of Rs. 975-1450 and therefore, the respondent acted illegally in not protecting his pay and not making payment to him at the minimum of the pay scale. He also submitted that in view of the provisions of the Persons with Disabilities Act, 1995 particularly in view of the provisions of section 45 of the said Act the petitioner was to be given an equivalent post of that of Driver and if such a post was not available a supernumerary post was to be created for the petitioner and therefore, the order passed by the respondent directing him to join as Peon is illegal and without jurisdiction.

4. The aforesaid submission of the learned counsel for the petitioner was refuted by the counsel appearing for the respondents and he submitted that the aforesaid submissions are not tenable in view of the tenor of the judgment/order passed by the Division Bench of this court. In the earlier writ petition the Division Bench has clearly ordered that the petitioner shall be given an offer for an alternative post of Peon which he would accept and that the petitioner would be entitled to the pay of Peon/Store Attendant from the date of his premature retirement till the date the offer is made provided he accepts the offer.

5. I have considered the relevant submissions of the counsel appearing for the parties. The order passed by the Division Bench in the earlier petition filed by the petitioner are final and binding on the parties. In terms of the said order an offer was to be made to the petitioner for a post of Peon/Store Attendant, which was in fact made and the petitioner accepted the said offer and joined the said post without any demur or protest. He was also given the pay scale of a Peon from the date of his premature retirement till the date of his joining and subsequently thereafter, in terms of the order of the Division Bench. The plea therefore, that the petitioner should have been given an equivalent alternative post or that the respondent should have created a supernumerary post if an alternative equivalent post was not available, is unjustified and barred by the principles of res judicata. The said plea also cannot be canvassed before this court, for the same stands decided in between the parties and is no longer res integra.

6. So far the prayer for payment of the salary of Peon is concerned the claim of the petitioner that his pay which he was receiving as a Driver should have been protected by the respondent also cannot be accepted. For whatever pay he was receiving at the time of his premature retirement was in a higher pay scale to that of the Peon and that in terms of the order of the Division Bench he is entitled to claim and receive only the salary of a Peon. The petitioner was to be given the pay scale of a Peon from the date of his premature retirement till the date of his joining and thereafter in terms of the order of the Division Bench. The petitioner was prematurely retired by an order issued on 5.3.1993 and he joined as a Peon w.e.f. 31.3.1995. Therefore, the petitioner would be entitled to the increments in the pay scale of Peon from 5.3.1993 when he was prematurely retired till the date of his joining i.e. on 31.3.1995. The petitioner would also continue to earn increments for all subsequent years in accordance with the existing rules and law.

7. In terms of the aforesaid order the writ petition stands disposed of. There will be no order as to costs.