Telangana High Court
P. Kishore Kumar vs The Telangana State Road Transport ... on 13 September, 2024
THE HON'BLE SHRI JUSTICE ANIL KUMAR JUKANTI
WRIT PETITION No.43213 OF 2018
ORDER:
This writ petition is filed seeking the following relief:
"...to issue a writ or order or direction more particularly one in the nature of Writ of Mandamus declaring that the action of the respondents in not protecting the petitioner's pay scale of Mechanic post and not counting the seniority in the post of Mechanic and not paying the salary for the interregnum period is bad, arbitrary, illegal, unjust and violation of the Law and consequently, direct the respondents to protect the pay scale of the petitioner in the post of Mechanic and count the seniority in the post of Mechanic for the further promotions by paying the salary for the period Oct, 2016 to Feb, 2017 by restoring the earning leaves of the petitioner and pass such other order or orders..."
2. Heard P.Venkateshwer Rao, learned counsel for petitioner and Mr. N.Praveen Reddy, learned Standing Counsel for TSRTC for respondents.
3. Brief facts:
Petitioner was appointed as Shramik on 01.03.2011 in respondent Corporation, promoted to the post of Mechanic Grade-II w.e.f. 25.01.2014. Petitioner submitted 2 a representation along with a certificate for grant of Physically Handicapped (PH) allowance for permanent disability. Petitioner was directed to appear before the Medical Officer, Tarnaka Hospital, on examination, petitioner was declared unfit for the post of Mechanic in M2 category due to "Muscular Dystrophy Bilateral Shoulder (Pectoral Girdle)" vide M.C.No.099661 dated 28.09.2016 (Ex.P3).
3.1 In an appeal filed, petitioner was directed to appear before the Chief Medical Officer and after examination, petitioner was found unfit for the post of Mechanic in M2 category vide proceedings dated 31.10.2016. On a review application, Medical Board met on 30.11.2016, examined the petitioner and found petitioner unfit for the post of Mechanic in M2 category, as per the medical standards of TSRTC due to Muscular Dystrophy. Representation dated 08.12.2016 was submitted for providing alternative employment. Petitioner was subjected to medical examination and was found fit for the post of Shramik under X2 category vide M.C.No.245313 dated 23.02.2017.3
Vide an order, dated 03.03.2017, petitioner was reverted to the post of Shramik with immediate effect. Grievance is that petitioner's pay scale for the post of Mechanic is not protected and seniority in the post is not counted. Further grievance of petitioner is that Section 47 of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short 'the Act, 1995') entitles petitioner for protection of pay scale, that his case falls under Section 2(i) of the Act, 1995 and hence, pay scale be protected. It is also the grievance of petitioner that his seniority in the post of Mechanic be considered for further promotions and that his salary be paid from October, 2016 to February, 2017. Hence, writ petition.
4. Learned counsel for petitioner submitted that petitioner, was employed in the respondent Corporation as Shramik, was promoted to the post of Mechanic Gr.II w.e.f. 25.01.2014. It is further submitted that on a representation made for grant of PH allowance, he was directed to appear for medical examination and was found unfit for the post of Mechanic in M2 category due to "Muscular Dystrophy 4 Bilateral Shoulder (Pectoral Girdle)" vide M.C.No.099661, dated 28.09.2016. It is also submitted that on an appeal to Medical Board, petitioner was found unfit for the post of Mechanic in M2 category. It is submitted that on a representation for alternative employment, he was given the post of Shramik w.e.f. 03.03.2017, after medical examination. It is pointed out that petitioner was found unfit for the post of Mechanic only, for Muscular Dystrophy as per Section 2(i) of Act, 1995. It is urged that Section 47 of the Act, 1995 entitles the petitioner for pay scale of Mechanic. It is lastly submitted that Muscular Dystrophy is a form of locomotor disability and that locomotor disability includes shoulder dislocation disabling the person.
4.1 Placing reliance on the judgment of E. Rajaram (died) by LRs. V. Singareni Collieries Company Limited, Godavarikhani, Karimnagar District 1, it is submitted that in similar circumstances, the learned Single Judge hasheld that "pay drawn by him in the previous assignment/post should continue to be protected from that stage, in the alternative employment". It is further submitted that the 5 action of respondent Corporation in not granting protection of pay scale is unjust, illegal and arbitrary. 4.2 It is submitted that reliance placed by learned Standing Counsel for respondent Corporation on the Hon'ble Apex Court's judgment in Andhra Pradesh State Road Transport Corporation and Others v. B.S.Reddy 2 is not applicable to the facts and circumstances of the case and the judgment in W.A.No.1376 of 2016 has not considered the aspect of protection of pay scale and that both the judgments are not applicable in the facts and circumstances of the case.
5. Learned Standing Counsel for respondent Corporation submitted that petitioner was appointed as Shramik and promoted as Mechanic Gr.II and on examination, was declared unfit for the post of Mechanic Gr.II. It is further submitted that on appeal and on review, petitioner was found unfit for the post of Mechanic in M2 category. It is also submitted that as per Employees (Service) Regulations, it is the opinion of Medical Officer which forms the basis to conclude whether an employee is fit to discharge duties on a 1 2010 (3) ALD 190 2 Civil Appeal No.3529 of 2017 and batch 6 post held. It is submitted that in the representation dated 08.12.2016, petitioner agreed for alternative employment and hence, petitioner was subjected to medical examination and was found fit for the post of Shramik under X2 category vide MC No.245313 dated 23.02.2017 and therefore, petitioner was provided the post of Shramik vide order dated 03.03.2017.
5.1 It is submitted that Section 47 read with Section 2(i) of the Act, 1995 is not applicable in the present case, as Muscular Dystrophy is not a disability included under Section 2(i) of the Act, 1995. It is further submitted that the contention of petitioner for pay scale protection on the basis of Section 47 read with Section 2(i) of the Act, 1995 is totally misconceived.
5.2 Learned Standing Counsel, relying on the judgment in B.S.Reddy (2 supra), submitted that the Hon'ble Supreme Court held that Section 47 read with Section 2(i) of the Act, 1995 is applicable to only those disabilities, which are specified under Section 2(i) of the Act, 1995. Learned Standing Counsel further relied on the judgment in 7 W.A.No.1376 of 2016 and submitted that petitioner is not entitled for any relief as claimed for.
5.3 It is lastly submitted that petitioner is not entitled for protection of pay scale under Section 47 read with Section 2(i) of the Act, 1995. It is further submitted that Muscular Dystrophy is not an enumerated disability under Section 2(i) of the Act, 1995.
6. Heard learned counsels, perused the record and considered the rival submissions.
7. Petitioner was appointed as Shramik on 01.03.2011 and was promoted as Mechanic on 25.01.2014. Medical officer vide certificate No.099661, dated 28.09.2016, stated that petitioner was unfit for services in M2 category (Mechanic), as he was diagnosed with Muscular Dystrophy Shoulder (Pectoral Girdle) with 77 ½ % disability. On appeal, to Medical Board, Medical Board on 31.10.2016 held that petitioner was unfit for the post of Mechanic in M2 category due to muscular dystrophy and endorsed the same on the certificate dated 28.09.2016 (Ex.P3).
8
8. On 30.11.2016, a letter was addressed by Chief Medical Officer-I, Hospital Tarnaka to the Industrial Relations Officer, TSRTC, ZWS, Uppal, vide letter No.SP/19(MB.10)/2016-TH, wherein it was stated as follows:
"The Medical Board met on 30.11.2016 examined Sri P.Kishore Kumar E.272983, MECHANIC of ZWS, UPPAL and found that he is UNFIT for the post of Mechanic in M2 category as per the Medical Standards of T.S.R.T.C. due to MUSCULAR DYSTROPHY.
The original M.C.No.099661, Dt.28-09-2016 is returned herewith duly making necessary endorsements."
9. Further, office order dated 03.03.2017 issued by Industrial Relations Officer in case No.W5/367(1)/16-UPL, stated as follows:
"The party has been directed to Tarnaka Hospital on 17.11.2016 to appear before the Medical Board for re- examination. The Medical Board met on 30.11.2016 examined the party and found that he is unfit for the post of Mechanic in M2 category as per the Medical standards of TSRTC due Muscular Dystrophy vide reference 7th cited.
Again the above employee has submitted a representation dt.08.12.2016 for providing alternative employment, vide reference 8th cited.
In this connection, the competent authority ahs accorded permission to direct the above employee for Medical Examination to the previous post of Shramik in terms of Reg.6A(4) of TSRTC employees (Service) 9 Regulations, 1964 since he opted for alternate employment.
Accordingly, the party has directed to Tarnaka, Hospital to assess his suitability for the post of Shramik. After medical examination, he has found fit for X2 category i.e., Shramik vide M.c.No.245313, dt.23.02.2017 vide reference 11th cited.
Therefore, Sr. P.Kishore Kumar, E.272983, Mechanic of ZWS/UPL is hereby reverted to his previous post of Shramik with immediate effect."
10. On a perusal of office order dated 03.03.2017, it is evident that petitioner was found unfit for the post of Mechanic, but was found fit for X2 category i.e., Shramik, thereby reverted to the post of Shramik.
11. It was contended that petitioner was employed as Mechanic (M2 category) from 27.01.2014 till he was examined by Medical Board on 28.09.2016 and that his pay scale on the post of Mechanic should be protected and the service be counted for future promotions.
12. Perused the judgment of Apex Court in B.S.Reddy (2 supra), the Hon'ble Apex Court dealt with the applicability of Section 47 read with Section 2(i) of the Act, 1995. Perused the 10 judgment of Division Bench of this Court in W.A.No.1376 of 2016. The relevant portion of the judgment is as follows:
"It is however clear that this observation was made in the general sense and not in the context of 'disability' as defined under Section 2(i) of the Act of 1995 for the purposes of Section 47 thereof. When it is an admitted fact that the respondent has not suffered a 'disability' as defined by Section 2(i) of the Act of 1995, the question of his claiming monetary benefits under Section 47 thereof would not arise in the light of the decision of the Supreme Court in B.S.REDDY."
13. In the said judgments, the rights of a person to be protected under Section 47 read with 2(i) of the Act, 1995 has been considered. This Court is not inclined to accept the submissions canvassed by learned counsel for petitioner in the light of the judgments.
14. Section 47 of the Act, 1995 reads as follows:
"(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.
11(2) No promotion shall be 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.
15. Section 2(i) of the Act, 1995 is as follows:
"Disability" means-
i. blindness;
ii. low vision;
iii. leprosy-cured;
iv. hearing impairment;
v. loco motor disability;
vi. mental retardation;
vii. mental illness;"
16. Section 47 of the Act, 1995 speaks of non- discrimination in Government employment. From a perusal of the section, it is clear that an employee, after acquiring disability, if found not suitable for the post holding, he could be shifted to some other post with the same pay scale and service benefits.
17. Section 2(i) of the Act, 1995 speaks of what a disability is. Contention of learned counsel for petitioner that the case of petitioner falls under locomotor disability is farfetched. Certificate issued by Medical Board on 28.09.2016 is that 12 petitioner is diagnosed with "Muscular Dystrophy Bilateral Shoulder (Pectoral Girdle)". It is further the case of learned counsel for petitioner that Muscular Dystrophy Bilateral Shoulder (Pectoral Girdle) is one of the enumerated disabilities under Section 2(i) of Act, 1995 and falls under the category of locomotor disability. This Court is of the considered opinion that the contention cannot be accepted. In the Medical certificate issued by Medical Board, it is categorically stated that petitioner is found unfit for M2 category due to muscular dystrophy. This Court cannot extrapolate and interpolate the phrase "Muscular Dystrophy".
18. In a catena of judgments, the Hon'ble Apex Court held that a Writ Court cannot substitute its view, for the view expressed by a Medical Board. It is not open for this Court to substitute the decision of the Medical Board, as contended by petitioner. It is the Medical Board which is the appropriate body to certify a particular disability. The contention that muscular dystrophy is a locomotor disability and falls under Section 2(i) of the Act, 1995, cannot be accepted. No grounds have been made out for granting of any relief as prayed for. 13
19. For the aforesaid reasons, the writ petition is devoid of merits and is liable to be dismissed and is accordingly dismissed. No order as to costs.
Miscellaneous petitions, if any, pending, shall stand closed.
__________________________________ JUSTICE ANIL KUMAR JUKANTI Date: 13.09.2024 KRR/PLP