Abdul Hakeem,Nizamabad Dist vs Apsrtc,Md,Hyd, 2
2023 Latest Caselaw 1169 Tel

      THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY

                WRIT PETITION No.1716 of 2013
ORDER:

Aggrieved by the action of respondent No.2 in issuing

proceedings No.E2/255(1)/11-RM:NZB dated 11.07.2011 in

fixing the pay of the petitioner in the category of Shramik and

not paying the salary from November, 2010 to July, 2011, the

present writ petition is filed.

The case of the petitioner is that he was appointed as a

Driver in the respondent Corporation in the year 1986. While

so, in the year 2010, the respondents have sent the petitioner

No.1 for periodical medical examination to the respondent

Hospital at Tarnaka; where, after examination he was declared

unfit to the post of Driver through medical certificate dated

09.11.2010. Subsequently, the petitioner was also referred for

further medical examination to the Medical Board, Tarnaka

Hospital, Hyderabad, where also after examination, the Doctors

of the Medical Board have held that petitioner was unfit to the

post of Driver vide proceedings dated 28.02.2011. Thereafter,

the petitioner was provided an alternative employment as a

Sramik and posted at Kamareddy depot vide proceedings dated

11.07.2011, however, without extending the pay protection in

the cadre of Driver and also without paying salary from AAR, J 2 WP_1716_2013

November, 2010, to July, 2011. Questioning the same, the

present writ petition is filed.

This Court while admitting the writ petition on

20.02.2013 has issued interim direction to the respondents to

fix the pay in the cadre of Grade-I Driver and pay the salary

from November, 2010, to July, 2011, and arrears thereof.

A counter affidavit has been filed mainly stating that the

petitioner was offered alternative employment of Shramik

w.e.f.11.07.2011 subject to certain terms and conditions as per

Circular No.PD-16/2008, dated 25.02.2008, and PD-09/2009

dated 04.03.2009. His pay and allowances, scale was regulated

according to the instructions in force, for which the petitioner

has opted. His pay was protected while fixing in the Shramik

scale from 09.11.2010 and he was paid all eligible wages duly

along with leaves to his credit from the date of being declared as

unfit i.e. 09.11.2010 to the date of reporting at Kamareddy

depot on 18.07.2011. It is further stated that the interregnum

period from the date the employee is declared 'unfit' by the

Medical Officer, till the date he is declared 'unfit' or 'fit' by the

Medical Board, will be treated as leave due to him. The

employees who work in the Corporation for considerable period

will have sufficient leave balances to their credit and such

leaves will be debited for payment of salary, during the

interregnum period. It is further averred that the services of the AAR, J 3 WP_1716_2013

petitioner are not dispensed with and has been kept under

Medical observation and therefore Section 47 of the Persons

with Disabilities (Equal Opportunities, Protection of Rights and

Full Participation) Act, 1995 (in short '1995 At'), is not

applicable to the case of the petitioner. Hence, it is prayed to

dismiss the writ petition.

An additional counter affidavit has also been filed by the

respondent Corporation mainly stating that the pay of the

petitioner in the cadre of Driver has been protected. It is stated

that the petitioner was drawing the gross salary of Rs.18,387/-

in the post of Driver whereas in the alternative employment as

Shramik his gross salary in the month of November, 2011 was

Rs.19,483/-. Thus, there was no reduction either in the basic

pay or gross salary in the post of Shramik. It is further stated

that the petitioner was provided alternative employment as

Shramik vide office order dated 11.07.2011 and he reported for

the duty at Kamareddy Depot on 18.07.2011 and since then he

had been paid the salary. Therefore, it is prayed to dismiss the

Writ Petition.

Heard Sri A. Jagan, learned counsel for the petitioner,

and Sri Thoom Srinivas, learned Standing Counsel for the

respondent-Corporation.

Learned counsel for the petitioner has stated that as per

the provisions of the 1995 Act, more specifically Section 47 (1) AAR, J 4 WP_1716_2013

thereof, the petitioner is entitled to the pay protection. Learned

counsel has stated that due to the disability declared by the

Superintendent, APSRTC Hospital, Tarnaka, the petitioner was

declared 'unfit' to be a driver on the ground that he had a

defective distant vision on left eye. Thereafter, on the

representation of the petitioner, the respondent Corporation has

issued the proceedings No.E2/255(1)/11-RM:NZB, dated

11.07.2011 appointing the petitioner as a Shramik in X-2

category. Learned counsel has further stated that the protection

of pay, which has been contemplated under Section 47 (1) of the

1995 Act has not been extended to the petitioner. Learned

counsel has placed reliance on the order dated 02.11.2012

passed by a learned single Judge of this Court in W.P. No.29583

of 2012 in support of his case and prayed to allow the writ

petition.

Per contra, the learned Standing counsel for the

respondent Corporation has vehemently opposed the very

maintainability of the writ petition and stated that the petitioner

does not fall within the definition of 'disability' defined under

Section 2 (i) of the 1995 Act. Learned counsel has stated that

for extending the protection of pay enumerated under Section

47 (1) of the 1995 Act a person who is having disability has to fit

into the category mentioned in 2 (i). Learned counsel has relied

on the unreported judgment of Hon'ble Supreme Court in Civil AAR, J 5 WP_1716_2013

Appeal No.3529 of 2017 & batch, dated 23.02.2017, and the

unreported common judgment dated 25.03.2022 rendered by

the Division Bench of this Court in Writ Appeal Nos.196 of 2017

and batch.

Perused the material on record.

It is pertinent to note that even though the respondent-

Corporation has taken a specific stand, both in the counter

affidavit as well as the additional counter affidavit, that pay

protection has been given to the petitioner, the petitioner has

not bothered to file any reply denying that pay protection has

not been extended to him.

Further, the Hon'ble Supreme Court while dealing with

Civil Appeal No.3529 of 2017 & batch, emanating from this

Court, has held, vide order, dated 23.02.2017, as under:

"...We are unable to subscribe to the view taken by the Madras High Court which has been followed in the impugned order and approve the view taken by the High Court of Delhi in Hawa Singh v. Delhi Transport Corporation & Airport Authority of India v. Kumar Bharat Prasad Narain Singh. We do not find any reason to hold that expression "disability" in Section 47 of the Act is used in a different context so as not to go by the definition given in Section 2 (i) of the Act. We also note that even though Section 2 (i) of the Act may not cover every disabled, scheme of the Andhra Pradesh and Telangana Transport Corporations covers even those employees who are not covered by Section 2 AAR, J 6 WP_1716_2013

(i) of the Act. Thus, those who are disabled within the meaning of Section 2 (i) of the Act are not without any benefit whatsoever. They are, thus, entitled to invoke such schemes but not Section 47 of the Act.

In view of above, we allow these appeals in above terms and hold that the benefit of Section 47 of the Act will be available only to those who are covered by Section 2(i) of the Act....."

Following the said ratio, a Division Bench of this Court

has disposed of Writ Appeal Nos.380 of 2017 and batch vide

common judgment, dated 05.06.2017, holding as under:

"Following the order of the Supreme Court, in Civil Appeal No.3529 of 2017 and batch dated 23.02.2017, these Writ Appeals are also disposed of holding that the benefit of Section 47 of the Act shall be available only to those who are covered by the disabilities specified in Section 2 (i) of the Act; it is open to the appellant-Corporation to take a decision, on individual grievances of the respondent-writ petitioners, with utmost expedition preferably within three months from the date of receipt of a copy of the order; and the respondent- writ petitioners are at liberty thereafter to avail their remedies in terms of the judgment of the Supreme Court..."

The common judgment dated 05.06.2017 has also been

followed by another Division Bench of this Court in Writ Appeal

Nos.196 of 2017 & batch dated 25.03.2022.

                                                              AAR, J
                                7                      WP_1716_2013

Having regard to ratio laid down by the Hon'ble Supreme

Court in the judgment dated 23.02.2017 in Civil Appeal

No.3529 of 2017 & batch, followed by the Division Benches of

this Court in Writ Appeal Nos.380 of 2017 and batch vide

common judgment, dated 05.06.2017, and common judgment

dated 25.03.2022 passed in Writ Appeal Nos.196 of 2017 &

batch, this Court does not see any merit to grant the prayer

sought in the present Writ Petition.

Accordingly, the Writ Petition is dismissed. Having regard

to the fact that in the counter filed by the respondent

Corporation a specific stand has been taken that the pay

protection has been granted by the Corporation while providing

alternative employment to the petitioner as Shramik, the said

protection shall continue. However, in case the petitioner is still

having any grievance with regard to his pay fixation, it is open

to the petitioner to avail the remedies available, if any

settlement has been reached by the Corporation and the

Employees' Union under the Industrial Disputes Act, 1947.

Miscellaneous petitions pending, if any, shall stand

closed. No costs.

_________________________ A.ABHISHEK REDDY, J Date : 13.03.2023.

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