S. Bal Raj, vs Apsrtc,
2022 Latest Caselaw 5502 Tel

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          THE HON'BLE SMT. JUSTICE P. MADHAVI DEVI

                        W.P. No.38697 of 2014



ORDER:

1. This Writ Petition is being filed by the petitioner seeking a writ of mandamus declaring the action of the respondents for not counting the period of declaring the petitioner as unfit for the post of conductor in the year 2002 till the petitioner was taken on duty on 04.11.2008 in the alternative post of Shramik for the purposes of seniority, increment and wages as illegal, arbitrary, unjust and unconstitutional and to consequently direct the respondents to treat the period as 'on duty' for all purposes such as seniority, increment, leaves and wages in the post of conductor for the purpose of promotion in the interest of justice.

2. Brief facts leading to the filing of the present writ petition are as follows:

a. That the petitioner joined the service of the respondent's corporation as a conductor on 01.05.1991 after undergoing the due process of selection.

b. On 13.08.1996, the petitioner's service was regularized and while the petitioner was working in APSRTC, Bus Depot, Gadwal, the petitioner was removed from the service on 17.03.1998 on the ground of unauthorized absence.

c. Questioning the same, the petitioner filed I.D. No. 54 of 2000 before the Labor Court-III, Hyderabad and the said dispute was settled in the Lok-Adalat and the petitioner was to be reinstated as a fresh regular conductor.

d. Before reinstatement, the petitioner was examined by the medical officer, but was declared as unfit due to vision problem in the eye, due to the injuries sustained by him while he was performing duty under the control of the Depot Manager, Gadwal.

e. The petitioner, therefore, made a representation to the respondent No.2 to provide suitable alternative employment as mandated by Section 47 of the Persons with Disabilities Act, 1995.

f. On 29.08.2002, the respondent No.2 rejected the representations of the petitioner and the Petitioner filed W.P. No. 3719 of 2003 and this court disposed of the writ petition directing the respondent Nos. 1 & 2 and the Depot Manager, Gadwal to consider the case of the petitioner for providing alternative employment as mandated by Section 47 of the Persons with Disabilities Act, 1995.

g. On 23.10.2008, the petitioner was issued proceedings providing employment as a Shramik. Aggrieved, petitioner filed W.P. No. 22077 of 2011 for not protecting the pay and by order dated 04.11.2008, this court has disposed of the Writ

Petition directing the respondents to protect the scale of pay of the petitioner as that of the conductor.

h. Pursuant thereto, on 21.08.2012, proceedings were issued protecting the scale of pay of the petitioner as conductor. The petitioner is now seeking the relief of seniority, increments, leaves and wages in the post of conductor for the purpose of promotion from the date on which he has declared as unfit i.e., in the year 2002, till he was taken on duty as Shramik on 04.11.2008 and also all consequential benefits of pay protection. Accordingly, this writ petition has been filed.

3. The Learned Counsel for the Petitioner reiterated the submissions made in the writ affidavit and submitted that the petitioner has been declared as medically unfit due to the injuries caused to him while he was discharging his duties and therefore, it is the duty of the respondents to issue or to provide him alternate employment under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act of 1995 and as per the said Act, the pay of the petitioner has to be protected in the post in which he was earlier working before being declared as medically unfit.

4. It is submitted the petitioner had earlier approached this court for pay protection, but, since the respondents have not considered the petitioner as Shramik from the date on which he has been declared medically unfit, the petitioner has lost six years of service benefits including monetary benefits which is in violation of Articles

14 and 21 of the Constitution of India read with Section 47 of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act of 1995.

5. The learned counsel for the respondents on the other hand, submitted that the disabilities which are mentioned in Section 2 (i) of the Disability Act constitutes a Disability under Section 47 of persons with Disabilities Act, 1995 and any disability which is not mentioned in Section 2 (i) of the Disabilities Act does not come within the scheme as evolved by APSRTC and TSRTC, and only such persons having such disability can be beneficiaries of Section 47 of 1995 Act. In support of his contentions, he placed reliance upon the following judgments.

a. The Order of the Division Bench of High Court in Writ Appeal Nos. 805, 806 and 807 of 2017 and others dated 22.06.2017.

b. Writ Appeal Nos. 380 of 2017 and others.

c. Civil Appeal No. 352 of 2017 arising out of SLP (C) 32016 of 2016.

d. Writ Appeal Nos. 196, 215, 281 and 319 of 2017 dated 25.03.2012.

6. The learned counsel for the respondents submitted that this writ petition does not have any merits and it has to be rejected accordingly.

7. Having regard to the rival contentions and the material on record, it is noticed that the only dispute in this writ petition is whether the petitioner is entitled to the benefits under section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act of 1995.

8. The Section 2 (i) of the said Disabilities Act refers to the disabilities, which means I) Blindness, II) Low Vision, III) Leprosy Cure, IV) Hearing Impairment, V) Locomotor Disability, VI) Mental Retardation and VII) Mental Illness.

9. The Learned Counsel representing the respondents further submitted that G.O. Ms. No. 42, Transport, Roads and Buildings (TR-II), 24th February, 2018 has exempted the TSRTC, Hyderabad from the applicability of persons with Disabilities Act, 2016 in respect of Drivers, Conductors and Mechanics including Artisans from the provisions of Section 20 of the Right of Persons with Disabilities Act, 2016.

10. Therefore, according to the learned Standing Counsel, the provisions of the Act would not apply to the case before this court. However, this argument of the learned standing counsel cannot be entertained as the exemption was granted in the year 2018 where as the petitioner is claiming for the benefits of the Act for the period 2002-2008. The disability sustained by the petitioner is relating to the vision of his eye which would come within the meaning of disability as between blindness and low vision. Therefore, it is clearly a disability under section 2(i) of the Act. The petitioner has

been declared as medically unfit in the year 2002 and was reinstated into service in the year 2008 and that too with the intervention of this Court. Section 32 of the Act provides that the appropriate government shall identify the posts in the establishments, which can be reserved for persons with disability and at periodical intervals not exceeding three years, review the list of persons identified and update the list taking into consideration the developments in technology. Section 33 provided that every appropriate government shall appoint in any other establishment such percentage of vacancies not less than 3% of persons or class of persons with disability of which 1% each shall be reserved for persons suffering from i) blindness or low vision, ii) hearing impairment, iii) locomotor disability or cerebral polsy in the posts identified for each disability, provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.

11. The respondents to whom the Act applied in the relevant years were therefore required to identify the posts and appoint the petitioner into one such post. Section 36 of Act provides that in any recruitment year, any vacancy under Section 33 cannot be filled up due to non-availability of the suitable person with disability or for any other sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with disability is not

available, it must be filled up by interchange of three categories and only when no person with disability available for the post in that year, the employer shall fill up this vacancy by appointment of the person, other than a person with disability. Therefore, it is clear that every year, the post is to be filled up only by the eligible candidate with disability. The reserved post has to be considered for appointment of persons with disability only and only where there is no candidate with such disability that the post can be filled up by a candidate without disability. The respondents in the counter-affidavit have not stated that there were no vacancies reserved for the persons with disability in the years 2002 and 2008. In view of the same, this Court deems it appropriate to direct the respondents to grant seniority, increments and 50% of the wages from the date on which the post reserved for persons with disability has fallen vacant, from the year 2002 till the date of actual reinstatement of the petitioner in 2008 as period of service and all the consequential benefits are to be granted to the petitioner.

12. In the judgments relied upon by the learned Standing Counsel for the respondents, it was held that the benefit of Section 47 of the Act shall be available only to those who are covered by the Disabilities specified under Section 2 (i) of the Act and the respondents therein were directed to take a decision on individual grievances of the petitioners therein within a period of three months from the date of receipt of the copy of the order. In all these decisions, the Court was considering the cases of the persons with disabilities which are specified under Section 2 (i) of the Act and it

was held that only such persons are eligible for consideration under Section 47 of the Disabilities Act.

13. In the case before this Court also, the disability of the petitioner is as per Section 2 (i) of the Disabilities Act. Therefore, these decisions would apply to the case of the petitioner also in his favour. Therefore, the respondents are directed to consider and grant of consequential benefits of pay protection for the post of the Conductor with effect from the date on which this post was reserved for persons with disability marked and the petitioner shall be entitled to all benefits such as back wages, seniority and increments.

14. The writ petition is partly allowed. There shall be no order as to costs.

15. Miscellaneous applications, if any pending, shall also stand closed.

____________________________ JUSTICE P.MADHAVI DEVI

Date: 31-10-2022 nsk