Delhi High Court
Devender Singh vs Delhi Transport Corporation on 1 March, 2016
Author: Sanjiv Khanna
$~21
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 1756/2016
Date of decision: 1st March, 2016
DEVENDER SINGH ..... Petitioner
Through Mr. Anil Mittal and Ms. Komal
Aggarwal, Advocates.
versus
DELHI TRANSPORT CORPORATION ..... Respondent
Through Ms. Latika Chaudhary, Advocate
for Ms. Avnish Ahlawat, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE NAJMI WAZIRI
SANJIV KHANNA, J. (ORAL)
In this writ petition filed by Devender Singh on 24th
February, 2016, challenge raised is to the order dated 20th
November, 2014, passed by the Central Administrative Tribunal in
OA No.3791/2013. The said OA was directed against the show
cause notice asking the petitioner to reply as to why his
appointment should not be terminated under clause 9(a)(i) of the
DRTA (Conditions of Appointment & Services) Regulations, 1952.
The relevant portion of the notice reads:-
"Whereas you were medically examined by the DTC Medical
Board on 6.11.2008 and declared Unfit, due to eye vision -defect.
for the post vide its report bearing No. MO/HQ/452/23 dated
6.11.2008.
Whereas a decision was taken by the competent
.
authority/DTC Board, vide Resolution No.90/2009 dated
22-12-2009 to get those candidates medically re-examined
at Guru Nanak Eye Centre who were declared medically
Unfit by the DTC Medical Board due to the defective eye-
vision. Accordingly, you were directed to the Guru Nanak
Eye Centre for medical re-examination on 7.01.2009.
Whereas after your re-medical examination on being declared
medically Fit by Guru Nanak Eye Centre, you were given offer
of appointment on 24.4.2009 and after ,completion of pre-
requisite formalities, you were given appointment as driver with
effect from 7.12.2009 Vide letter No.PLD-III (DSSSB)/Dr.
Other state/Appt./09/4064 dated 2.12.2009.
Whereas by that time, one such candidate (selected by DSSSB
during 2008) who was initially declared medically unfit by the
DTC Medical Board and subsequently declared medically fit by
the Guru Nanak Eye Centre and was given appointment as driver,
meet with an accident resulting into causing injuries. As such he
was got medically examined by the DTC Medical Board and the
DTC Medical Board found him again medically Unfit for the
post of Driver. Taking into consideration the scenario arisen out
of the instant case and in the interest of safety of the general
public, it was decided by DTC Board vide Resolution No.
25/2012, to get all those drivers who were initially declared unfit
by DTC Medical .Board, subsequently declared Fit by Guru
Nanak Eye Centre and given appointment as driver, be got re-
examined by an Independent Medical Board, constituted by the
Govt. of NCT of Delhi comprising 03 Doctors (02 from Govt.
Hospital & 01 DTC Doctor).
Whereas, the Health & Family Welfare Department, Govt. of
NCT of Delhi had nominated the members of above said
Independent Medical. Board, vide its Order No.
F.25/88/X/MB-DTC/H&FW/1978-1999 dated 17-4-2013.
Accordingly, you were directed to appear before the
Independent Medical Board at Guru Tog Bahadur Hospital,
NCT Delhi-95 on 19.8.2013.
And whereas, the above Independent Medical Board
constituted by the GNCTD after your medial examination in
terms of laid down medical standards for the post of driver,
declared you medically unfit due to eye vision defect on
19.8.2013 (copy enclosed), which proves that you have got
appointed as driver by deceitful means as you are unfit for the
post of driver in DTC. You being found unfit by Medical Board
to drive buses on line therefore are not entitled to continue as
Driver in DTC which is a public service and life-of public cannot
be placed in the hand of unfit Drivers.
Therefore, in view of the detailed facts as explained above,
you are required to show-cause as to why your services as driver
in Delhi. Transport Corporation should not be terminated before
the aforesaid action of termination from the services is taken
under Clause 9(a) (i) of the DRTA (Conditions of Appointment
& Services) Regulations, 1952, an opportunity is being given to
you for giving reply to the said show-cause notice within 7 days
of the receipt of the same."
Thus, the respondents had alleged that the petitioner had procured
appointment by resorting to deceitful means, and this aspect was
under consideration of the respondents.
2. The impugned order records that in the event of there being any
decision by the respondents finding the petitioner or others guilty of
resorting to deceitful means without holding an enquiry, it would be
open to the petitioner to take an appropriate remedy in accordance
with law. It records that if the services of the petitioner and others
were terminated on the basis of the medical board's report, and not
on the basis of allegations of resorting to deceitful means, the
decision of the respondents would be in consonance with the Delhi
High Court's decision dated 31st October, 2014 in W.P.(C) No.
39/2014, Delhi Transport Corporation Vs. Sanjay Kumar & Ors.
The plea of alternate employment was rejected, as the petitioner
had questioned the show cause notice itself and pleaded that their
vision was in order. The impugned order notices that the petitioner
was found to be medically unfit by the DTC Medical Board at the
initial stage itself and, thus, it could be held that he had developed
defective vision before he had joined the service.
3. The impugned order order is clear and categorical and we do
not think that a belated challenge after two years would be justified
and correct. The petitioner, it is apparent to us, had accepted the
said order. During pendency of the aforesaid OA No.3791/2013,
the respondents had passed order dated 5th December, 2013 under
clause 9(a)(1) of the Delhi Road Transport Authority (Conditions of
Appointment & Services) Regulations, 1952. The petitioner did not
amend the aforesaid OA and challenge this order. This order dated
5th December, 2013 was also not challenged by filing an
independent or new OA. Section 21 of the Administrative
Tribunals Act, 1985 would be attracted, unless the delay is
condoned.
4. The petitioner, in our view, cannot challenge the order dated
5th December, 2013 by way of the present writ petition, bypassing
and ignoring the remedy available under the Administrative
Tribunal Act, 1985. In fact, during the course of hearing, learned
counsel for the petitioner submitted that the order dated 5th
December, 2013, could have been challenged in appellate
proceedings but no appeal was filed.
5. Looked from all sides, we do not find any merit in the present
writ petition and the same is dismissed.
SANJIV KHANNA, J.
NAJMI WAZIRI, J.
MARCH 01, 2016
NA/VKR
