Central Administrative Tribunal - Delhi
Ved Ram Sharma vs Delhi Transport Corporation on 6 January, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.1897/2009 New Delhi, this the 6th day of January, 2010 HONBLE MR. L.K. JOSHI, VICE CHAIRMAN (A) HONBLE MRS. MEERA CHHIBBER, MEMBER (J) Ved Ram Sharma S/o Shri Brahm Singh Driver B.No. 8414, P.T. No. 14479 R/o B-2/160, Jawahar Park, Ration Wali Gali New Seema Puri Depot, Sahibabad, Ghaziabad (UP). . Applicant (By Advocate: Sh. K.K.Patel) Versus 1. Delhi Transport Corporation Through its Chairman cum Managing Director, I.P.Estate, New Delhi-110001. 2. Depot Manager, Delhi Transport Corporation, Hasan Pur Depot, Delhi-92. . Respondents (By Advocate: Shri J.S.Bhasin and Ms. Rashmi Priya) O R D E R Mr. L.K. Joshi, Vice Chairman (A) :
The Applicant is challenging the order dated 8.12.2008 by which he has been retired from the service of the Respondent-Delhi Transport Corporation (DTC) on attaining the age of 55 years on 30.04.2009. The relevant portion of the impugned order reads thus:
Consequent upon having been declared unfit for duty by the D.T.C. Medical Board for the post of Driver, Ved Ram Sharma S/o Shri Braham Singh, B.No.8414, T.No. 14479 of this Unit is retired after 55 years on dated 30.4.2009 from the post of Driver with immediate effect under para 10 of the D.R.T.A. (Conditions of appointment and service regulations, 1952).
The Applicant has also challenged the Office Memorandum (OM) dated 30.06.1998 issued by the Respondent DTC. Paragraph 3 of which reads thus:-
3. The Board further resolved that the drivers of the DTC shall get the benefit of enhanced retirement age subject to their being found fit in every respect after a through medical examination by the Medical officer of the DTC every year after they have attained the age of 55 years. The first examination shall be carried out immediately after or before they have attained the age of 55 years. If as a result of such medical examination they are found unfit for further service, they would be retired from the service of the Corporation without any notice. This has been challenged on the limited ground that the Applicant who had become disabled and had been assigned light duty should not be subjected to medical fitness after the age of 55 years as has been prescribed for the drivers.
2. The facts of the case, in nuce, are that the Applicant was appointed as a driver with the Respondent DTC. The Applicant met with an accident, while discharging his official duties in the year 2002 and on account of the injury sustained during this accident the Applicant became disabled. He became unfit for the post of Driver on medical grounds. The Respondent DTC appointed the Applicant on a post by which he had to check the registration number of buses by an order dated 30.09.2005. The Applicant was given the pay scale of driver but was assigned this light duty. On attaining the age of 54 years in the year 2009, the Applicant was asked to undergo medical test of fitness, which was compulsory for the drivers after the age of 55 years in order to continue beyond that age up to the age of retirement, which is 60 years for all other classes of employees in the Respondent DTC. As has been stated above, on being found unfit medically the Applicant was retired from service.
3. We are first taking note of the various laws, regulations and circulars, advertence to which has been made in this OA. Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter the Disabilities Act) reads thus:
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:
Provides 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.
4. Advertence has also been made to the circular dated 7.10.1963 by which the age of retirement of all the employees of Respondent DTC was enhanced from 55 years to 58 years. In this circular it had been also mentioned that as far as drivers of the Respondent DTC are concerned, they would retire at the age of 55 years and would get the benefit of enhanced age of retirement only after passing a medical test every year. In the circular dated 30.06.1998, which has already been referred to above, the age of retirement for the employees of the Respondent DTC was enhanced to 60 years but the same condition for drivers was repeated.
5. The sum and substance of the arguments of the learned counsel for the Applicant is that the Applicant having been given a lighter job after meeting with an accident and becoming disabled under Section 47 of the Disabilities Act and being found fit for the new job, cannot be retired by the Respondent DTC at the age of 55 years. He should, like other employees of the Respondent DTC, should be considered for continuation in service till the age of 60 years. It would be inappropriate and illegal as well as discriminatory for the Respondent to ask the Applicant to undergo medical test of fitness for the post, which is prescribed for the post of drivers because Applicant had seized to be driver and has been given light job for which he was medically fit. In this context a circular dated 11.10.1996 of the Respondent has been produced, the para (i) of which reads thus:
(i) in case of injury caused by accident arising out of and in the course of employment and as a result of which an employee is incapacitated for the work which he was capable of performing at the time of accident resulting in total disablement, shall be rehabilitated either in the equivalent post or lower post subject to the conditions that fulfills the conditions of educational qualification and is medically fit for the new post.
6. It is stated that by order dated 30.09.2005, the Applicants request for giving him light duty had been acceded to by the Respondent and he was given another job. He was medically fit for the job and, therefore, his continuation in service would not now be with reference to the parameters of medical fitness for the post of driver of the Respondent DTC.
7. We may not go into the further details of these arguments as the matter is seen to be no longer res integra. Learned counsel for the Respondent DTC would contend that the Honourable Delhi High Court had considered these issues in its judgment in Tarlochan Singh Aujla Vs. D.T.C., 2005 V AD (DELHI) 607 in WP (C) No.2708/1998 decided on 12.05.2005. The prayer in this case was as follows:
2. This Petition has been filed praying for with the following reliefs:
It is, therefore, prayed that in view of the above circumstances, the writ of mandamus be issued against the respondent corporation with cost, thereby directing the respondent to absorb and place the respondent on the post which he would have been entitled to if he had not suffered the accident in August, 1994 and to grant all benefits including the increase in the salary and other benefits such as D.A., Bonus, gratuity, promotion etc. immediately and further to pay the entire arrears of salary and allowances w.e.f. August, 1994 till date. Any other order which this Honble Court may deem fit and proper under the circumstances of the case, may be also granted in favour of the petitioner and against the respondent corporation.
8. After considering all aspects and the Disabilities Act, the Honourable Delhi High Court held thus:
7. Since the prayer of the Petitioner is that he should receive emoluments in the scale payable to a Driver, which were the duties performed by him at the time of the accident he must also clear the physical test which would entitled him to continue after the age of 55 years. The Disabilities Act does not give any added benefit to a person who has suffered an accident; it endeavours to level the disadvantages facing the employee as a result of the injuries sustained by him. Basically it enjoins the continuance of service on all terms applicable to all other employees. My attention has been drawn by learned counsel for the Petitioner to sub-clause 2 of Section 47 of the Disabilities Act which enunciates that no promotion shall be denied to a person merely on the grounds of a disability. It is contended that the next promotional position is that of Vehicle Examiner. Mr. J.P.Singh, Depot Manager, clarifies that one of the essential duties for a Vehicle Examiner is to drive the vehicle in the event of an emergency; in checking the functioning of a Bus he would also require to drive it. If the Petitioner, due to his disability cannot claim as a right the continuance in service beyond the age of 55 years because of his being medically unfit on reaching that age, he cannot steal an advantage over other persons because of his disabilities. The effect is that whilst the Petitioner would be entitled to payments in the pay-scale and receive all service benefits of a Driver, since he is not medically fit beyond the age of 55, he would have to superannuate on his attaining this age. This is also the intendment of the second proviso to Section 47 itself.
8. The State has the responsibility to look after its citizens. It appears to me that there is great merit in the adage that whilst there are limits to a persons need, there are no limits to his greed. The State has endevoured to look after the Petitioner in as best a manner possible by engaging him as a Peon but the Petitioner seeks to derive a premium from his accident. It had been specifically put to learned counsel for the Petitioner whether he would prefer to carry on in the post of Peon in which the retirement age is 60 years. That prayer, however, has been declined. The matter was subsequently challenged before a learned Division Bench of the Honourable Delhi High Court in LPA. The Honourable Delhi High Court in its judgment dated 9.01.2009 held thus:
18. In the light of the aforesaid observations of the division bench, the submission of the workmen/drivers that Section 47 of the disability act being a welfare legislation extends the age of their superannuation up to 60 years or in the alternative having been appointed to a lower post on account of benefits extended under section 47 of the Disabilities Act which post carries the age of retirement as 60 years, they should also be retired at the age of 60 years is again unacceptable for the simple reason that the drivers joins the Corporation as drivers and were supposed to perform the duties as drivers till the age of 55 years. As a matter of policy keeping a lower age of retirement for posts like that of a driver cannot be faulted and being a matter of policy cannot even otherwise be interfered with by this court. Moreover it is on account of the disability incurred by them before reaching the age of superannuation, i.e., 55 years which would have enabled the management to turn them out of service by retiring them prematurely but which could not be done because of coming into force of the Disability Act, which confers the benefit of retention in service may be at a lower post or by providing them salary till the age of their superannuation. However this does not in any way entitles them to have another 5 years of service having originally agreed for the retirement at the age of 55 years, being a driver. The benefit of extension as is being conferred by the office order issued by the Management is only an enabling provision in the case of drivers who are fit to be retained in service and does not ipso facto increases the age of superannuation. In fact accepting the contentions of the drivers would be putting premium to their disability which is not the mandate of the Disability Act.
19. There is merit in the submission of the management that sub Section 1 of Section 47 of the Disabilities Act clearly indicates that the benefits will be available to the employees till he attains the age of superannuation. The said Act does not add any additional benefit to a person who has suffered accident for Continuance in service beyond the age of 55 years because of his being medically unfit on reaching that age as he cannot steal advantage over other persons because of his disability. The fact is that whilst an employee would be entitled for payment in the pay scale and would receive service benefits of a driver till he is superannuated irrespective of the fact whether he is medically fit or not, but he will have to retire once he attains the age of 55 years. Thereafter he cannot say that on account of provisions contained under Section 47 of the Disabilities Act he is entitled to continue in service up to 60 years as is being pleaded because this is not the mandate of Section 47 of the Disabilities Act.
20. Thus we are of the considered opinion that there is nothing in the Disability Act which permits extension of the service of an employee. The protection afforded under Section 47 is to an employee who incurs a disability during the period of his service which certainly means from the date of recruitment and the date of superannuation. If the date of superannuation is 55 years which is extendable on year to year basis subject to medical fitness it cannot be said that service of the employees must be extended on account of the provisions of the aforesaid Act even if he is unfit for the Job i.e. to act as a driver.
21. It is no doubt true that the provisions under Section 47 forms part of a welfare legislation. However, the provisions cannot be interpreted in a manner which is not permissible by the Rules or the interpretation or which extends the provisions of the Act in a territory which is not permissible in law. Applying the aforesaid principles to section 47 of the Disabilities Act, in the context of regulation 10 of the service regulations governing the age of superannuation of the drivers in accordance with the office order No. 99/63 of 4.10.1963, it cannot be said that the age of superannuation of the drivers is 60 years. The benefit of extension is only to extend the services of those drivers, who otherwise retire at the age of 55 years but can act as a driver subject to their medical fitness on year to year basis which initially could have been up to 58 years and now up to 60 years. Such a situation is possible in the case of a driver whose disability incurred earlier may have been cured by the lapse of time. Looking to the nature of job which a driver is to perform by plying heavy vehicles like a bus which carries number of passengers, the benefit of extension is a beneficial provision taken by the management suo moto but this cannot be availed as a matter of right by the drivers who have to retire at the age of 55 years and are not medically fit to drive further. No case has been brought to our notice of discrimination in this regard. The provision is applied in general and not by way of exception, as is the case of the Management. Keeping a lower retiring age for such an strenuous job cannot be termed as either arbitrary or illegal. Hence we answer all the three questions as framed in para one above against the workmen and in favor of the management. Now we shall consider each of the cases separately:
32. We may also observe that the entire list raised by the workmen in this case rests on their submissions that they have been discriminated against; firstly qua their own colleagues, that is the other employees of the management whose age of retirement is 60 years and secondly by not conforming benefits made available under Section 47 of the Disability Act to the persons who are unable to perform their job on account of having incurred a physical disability.
33. However, these arguments proceeds on the basis that there is a discrimination exercised qua the workmen who forms a class by themselves that is the class of driver. For the class of driver if the management has decided, and rightly so, to keep a lower age of retirement qua other employees of the management, it cannot be said to be an Act of discrimination on their part. Similarly, qua application of the provisions of Section 47 of the Disability act, the said benefit have to be provided to a Government servant who incurs physical disability during the course of his tenure so as to make him equal qua his other colleagues who are in service having not incurred such a disability. The workmen cannot steal over a march over their own colleagues in the class of drivers while seeking extension of the benefit of the retirement age by invoking the provisions of Section 47 of the Disability Act which nowhere mandates such additional benefits, as is being claimed by them.
34. We may also mention that even in the submissions made by the management as well as in the written statement filed in all the cases, they have categorically stated that the extension of service of the workmen as a driver, which was made permissible, was subject to their being found medically fit by a medical board only because of the scarcity of drivers in the services of the management and it was not a decision to grant extension of services to a driver per se. Needless to say, that keeping of lower age of service in particular cases such as a Naib Subedar in the Army in comparison to the officers, an air hostess, services for an airmen are good examples which goes to show that those persons are retained in service for a lesser period because they are supposed to be fit till such time they continue in service of the management. Thus, even on this score also the case of the workmen has no legs to stand while the contentions of the management have to be upheld.
35. To conclude, we hold that the age of superannuation of a driver under the management is 55 years. Section 47 of the Disability Act does not ipso facto extends the tenure of service of a driver with Delhi Transport Corporation, the benefits granted to such drivers despite incurring disability during tenure of his service that is up to 55 years would not extend his service beyond 55 so as to enable him to continue in service may be at a lower post for which the normal age of retirement is 60. This is because the benefit of such post has been made available to the said person as per the provisions of Section 47 of the Act and not otherwise.
36. The views taken by the learned Single Judges of this Court in the Case of Trilochan Singhs case supra subject matter of LPA 1251/2007 as well as in the case of Dalel Singh Vs. DTC subject matter of LPA 2123/2006 as well as in the CWPs 12265/2004, 13885/2006 & 6803/2006 are upheld while the Judgments subject matter of LPAs 1214/2007 and 121/2007 are set aside leaving parties to bear their own cost.
9. The learned counsel of the Respondent has also relied on the judgment of the Honourable Delhi High Court in Mohinder Singh (Driver) Vs. Delhi Transport Corporation decided on 31.07.2006 in which the Honourable Delhi High Court held thus regarding the circulars of 4.10.1963 and 30.06.1998:-
4. My attention is drawn to the Delhi Road Transport Laws (Amendment) Act, 1971 by which the Delhi Transport Corporation was established. By clause (e) of Section 3 of the Act, all orders as well as regulations, appointments, notifications etc. issued by the erstwhile Delhi Transport Undertaking, working under Delhi Municipal Corporation were to become regulations for the Delhi Transport Corporation. The two circulars of 4.10.1963 and 30.6.1998, therefore, become regulations for the new Corporation.
10. Learned counsel for the Applicant had relied on the judgment of the Honourable Supreme Court in Kunal Singh Vs. Union of India and another, 2003 (4) SCC 534. He relied particularly on paragraph 9 of the aforesaid judgment, which has been reproduced below:
2. The facts in a nutshell are that the Applicant was working as Driver under the Respondent Corporation and acquired physical disability, i.e., Loco Motor Disability covered under Section 2 (i) (v) of the Act. He was given alternate job of registering bus numbers in the register which did not involve the physical duty by giving him the benefit of Section 47 of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. By notice dated 8.12.2008 the Applicant was informed that he would be retired from service from 30.04.2009 from the post of Driver under Para 10 of the Delhi Road Transport Authority (Conditions of Appointment and Service Regulations, 1952). The aforesaid Regulation provides that:
Any employee may be retired by the authority prematurely before attaining the age of 58 to 60 as the case may be on medical grounds.
11. Bare reading of the aforesaid paragraph would clearly show that this judgment does not in any way advance the cause of the Applicant. It is by the force of this judgment that the Applicant has been given the benefit of the Disabilities Act and given a lighter job. Thereafter, this judgment does not in any way had been interpreted to me that it would give the Applicant, as the Honourable High Court has said, to derive premium from his accident and continue his service beyond the age of 55 years for the drivers, who are medically unfit. The judgment is clearly distinguishable.
12. On the basis of above discussion and on consideration of the judgment of the Honourable Delhi High Court, adverted to in the preceding paragraph, we find that the Original Application is without any merit and is accordingly dismissed. No costs.
( MEERA CHHIBBER ) ( L.K. JOSHI )
Member (J) Vice Chairman (A)
sd