G. Surender Goud vs Telangana State Road Transport ...
2023 Latest Caselaw 868 Tel

          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.

2 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

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

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.

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.

-------------------------------

E.V.VENUGOPAL, J.

Date:      .02.2023
kvsn