Central Administrative Tribunal - Delhi
Jag Phool Singh vs Delhi Transport Corporation on 2 December, 2011
Central Administrative Tribunal
Principal Bench
OA NO. 2771/2011
With
OA No. 2433/2011
New Delhi this the 2nd day of December, 2011
Honble Mr.G.George Paracken, Member(J)
Honble Dr. Veena Chhotray, Member (A)
OA NO. 2771/2011
Rattan Singh, Driver, B.No.11163, BBMD-II,
S/o Sh. Mehar Singh
r/o House No.14, Malikpur,
P.O. Kingsway Camp,
Delhi-110009.
OA NO. 2433/2011
Jag Phool Singh, Driver, B.No.1-566, Narela Depot,
S/o Sh. Balbir Singh,
r/o Village Khera Malan,
New Delhi-110082.
. Applicants
(By Advocate: Sh. Amritansh Batheja for Sh. Anil Mittal)
Versus
Delhi Transport Corporation
I.P.Estate,
New Delhi-110002.
(through Chairman-cum-Managing Director)
.. Respondents
(By Advocate: Sh. J.S.Bhasin)
O R D E R (ORAL)
Honble Shri George Paracken:
Both these Original Applications are identical and, therefore, they are disposed of by this common order. The applicants claim in both these Original Applications is against the respondent - Delhi Transport Corporation (DTC for short) and it is for their reinstatement in service with full backwages and other consequential benefits including interest.
OA-2771/2001
2. The brief facts as stated by the Applicant in OA-2771/2011 are that he was appointed as a Driver with DTC on regular basis w.e.f. 2.5.1982 and during the course of his service he met with an accident on 25.8.1985 and suffered injuries on both his legs. He was admitted in Hindu Rao Hospital, Delhi for treatment. On 24.9.1985, the DTC asked him to report for duty in case he was fit or else to submit the leave application. As he was unfit, he did not report for duty and remained under the treatment of Hindu Rao Hopsital where both his legs were operated upon. As a result of the accident, his left leg became slightly shorter than the right leg. However, in July 1987 he was declared fit for duty by the Hospital authorities but vide his letter dated 30.7.1987, he requested the DTC to post him as Assistant Traffic Inspector or as Assistant Store Keeper or as Ticket Tally Clerk. On 18.8.1987, the Medical Board of the DTC found him fit for driving work and consequently the respondents, vide their letter dated 18.8.1987, informed him that his request for appointing him against any one of the above posts cannot be accepted. He, therefore, continued to work as a Driver till his normal date of retirement at the age of 55 years, i.e. till 30.4.2011.
3. On 30.6.1998, the respondent DPC had decided to enhance the age limit of its employees from 55 years to 60 years subject to their being found fit in every aspect by the Medical officer after they have attained the age of 55 years. Respondents, vide letter dated 13.4.2011 informed the applicant that he was going to attain the age of 55 years on 30.4.2011 and in case he wanted to get the benefit of extension of service upto 60 years, he should report to DTC Medical Board for fitness certificate. Accordingly, he appeared before the Medical Board on 13.4.2011. Later, vide letter dated 4.5.2011, the respondents informed him that the Medical Board had found him unfit for the post of Driver on account of shortness of his left leg after the accident and as such he stood retired from service on 30.4.2011 on attaining the age of 55 years. He sent a representation dated 23.5.2011 to the respondents to withdraw the aforesaid impugned letter dated 4.5.2011 as he was suffering from shortness of the left leg since 1987 and the respondents themselves have found him fit for the job of Driver. As the respondents did not consider the aforesaid representation he has filed this OA.
4. Applicant has challenged the aforesaid decision of the respondents retiring him from service w.e.f. 30.4.2011 on the ground that the deformity for which Medical Board has declared him unfit for the post of Driver was not a valid ground because the said deformity was with him since 1987 and the respondents have knowingly allowed him to perform the duty of Driver till 30.4.2011.
5. The learned counsel for applicant has stated that an identical issue was raised in OA-2760/2009 Munshi Lal, Driver vs. Delhi Transport Corporation and the same was allowed on 12.5.2010. As such, this OA may also be allowed in the same manner. The relevant part of the order in OA-2760/009 (supra) is as under:
5. On careful consideration of the rival contentions of the parties, as a model employer it is not open for the respondents to approbate and reprobate simultaneously, as ruled by the Apex Court in Rajasthan State Road Transport Corporation v. Bhik Nath, (2007) 5 SCC (L&S) 273. Applicant, who despite his disability after medical examination in 1982 was continued to perform on yearly medical examination duties of Driver till he attained the age of superannuation on 31.5.2009, yet on next medical examination for extension he has not been found fit. It is very strange that applicant who has not faced any disability or his injured index finger has not come in the way of efficient discharge of duties as Driver from 1982 to 2005 for which there is no complaint, advisory memo, enquiry etc. on record, yet on the same alleged disability holding applicant unfit to perform duty on re-employment upto 60 years, when the position has not been altered, the respondents have not acted fairly.
6. In the matter of discretion to an administrative authority fairness is sine qua non and abuse of power is assailable in judicial review, as held by the Apex Court in Meerut Development Authority v. Association of Management Studies, 2009 (6) SCALE 49.
7. In the present case though the legitimate expectation has not partaken the character of a Fundamental Right, but it is a test to check arbitrariness, as ruled by the Apex Court in State of West Bengal v. Niranjan Singha, 2001 (2) SCC 326.
8. In the above view of the matter, we do not find any impediment for applicant to be appointed on re-employment in continuation beyond 55 years as a Driver. The impugned orders cannot be sustained in law. Accordingly, OA is allowed and the impugned orders are set aside. Respondents are directed to appoint applicant as Driver with all consequential benefits, including pay and allowances, within a period of two months from the date of receipt of a copy of this order. No costs.
6. The respondent DTC in its reply has submitted that as the Applicant was going to superannuate on attaining the age of 55 years on 30.4.2011, he was medically examined on 25.4.2011. The Medical Board declared him unfit for extension of service as Driver as he was found to have post-accident disorders, FUC Bilateral Ferry Shaft and Tibia, shortening of left leg and limping gait. They have also submitted that the Honble High Court of Delhi in the case of WP (C) No.4417/2003 Roop Singh Vs. DTC, has already held that drivers of DTC shall get the benefit of enhanced retirement age only subject to their being found fit in every aspect after the medical examination by the medical officer/officers of the D.T.U. every year after they have attained the age of 55 years. The very same issue was again considered by the High Court in its judgment dated 15.11.2006 in WP (C) No.12182/2006 Mohinder Singh vs. DTC & anr. and reaffirmed the aforesaid decision. The High Court in LPA No.1251/2007 and LPA No.2123/2006 have considered the aforesaid judgments of the Single Judge and vide common judgment dated 9.1.2009 held that the provision for extension of service of the drivers beyond 55 years of age on year to year basis is subject to their medical fitness up to 60 years. Again, they have referred to the order of this Tribunal in OA-1897/2009 Sh. V.R.Sharma Vs. DTC & Ors. decided on 6.1.2010 wherein it has been decided that superannuation of Drivers of the DTC at the age of 55 years and further extension of service are subject to the medical fitness on year to year basis. Similarly, in the case of WP (C) No.635/2004 Sh. Raj Singh vs. DTC decided on 8.3.2007 the Honble High Court held that the Medical Board would consist of experts who would be best placed to give appropriate opinion with regard to medical disability which may be suffered by candidates seeking to render service with the DTC and the opinion given by the Medical Board would bind the Court. They have also referred to the OA No.3497/2010 Dharam Singh vs. DTC decided on 31.5.2011 dismissing a similar petition. They have also submitted, in terms of the circular dated 2.7.1987, one of the Medical Standards of the candidates appointed in DTC including drivers should be as follows:
h) That his/her limbs, hands and feet are well formed and developed. And there is free and perfect movement of all joints and there should be no contracture of any part of the body. There should not be motor or sensory loss of any part of the body. They have further submitted that the relaxation in the Medical standard given to the candidates selected in DTC is not relevant in the case of the applicant as no such relaxation can be given at the age of superannuation. They have, therefore, submitted that the case of the applicant for enhancement of age of retirement is not permissible.
OA-2433/2011
7. Applicant in this case, Sh. Jagphool Singh met with an accident in March 2002 and his right leg got injured. After the operation, a steel rod was implanted in his leg. As a result, the movement of his right leg has become stiff and he became permanently disabled. After the accident, the respondents did not provide him duty. He has, therefore, filed WP (C) No.5858/2003 in the High Court of Delhi seeking direction to the respondents to grant him duty and arrears of salary. By order dated 27.4.2005 the High Court allowed the writ petition and directed the DTC to pay him the wages from September 2005 onwards and to assign him duty. Thereafter, the respondents assigned him duty from June 2005 onwards and paid him the backwages. Since he has became unfit for the post of driver, he was given table duty in Pass Section or duties of the Vehicle Examiner or those of the Peon. As he was going to attain the age of 55 years on 9.9.2011, respondents vide Annexure A-1 letter dated 14.3.2011 that he will stand retired from service on 30.9.2011 as he has already been declared unfit for the post of Driver by the Medical Board, vide its report dated 27.7.2010.
8. Respondents in the reply has submitted that applicant was appointed as daily rated driver w.e.f. 1.12.1981 and brought on monthly rates of pay w.e.f. 1.6.1982. He remained on leave we.f. 27.3.2002 due to fracture in his leg. On 26.10.2002 he submitted an application of fitness from Maharaja Agarsain Hospital, Punjabi Bagh, Delhi and requested the DTC to allow him to join duty. However, he was referred to the DTC Medical Board for confirmation of his fitness and the Board after his examination/medical check-up on 13.11.2002 advised him rest for one month w.e.f. 13.11.2002. The applicant made a representation to Chairman cum Managing Director of DTC on 20.2.2003 against the aforesaid decision. He has also appeared before the Grievance Committee which recommended that his case file should be sent to the Chief Medical Officer, for his recommendation/comments. Again, the applicant was examined by the Medical Board of DTC on 4.4.2003 and recommended that, since he had suffered fracture and of RT Fenure and he had undergone surgery and still he was undergoing physiotherapy, he needed rest for another two months from 4.4.2003. Again, he was advised to have rest for one more month w.e.f. 13.8.2003. The Medical Board examined him again on 24.9.2003 and declared him medically unfit. Since he was attaining the age of superannuation, i.e. 55 years, he was directed to appear before the DTC Medical Board for his medical examination on 22.7.2010. The Medical Board, after examining him, vide its report dated 22.7.2010 declared him unfit for the post of driver. The respondents have submitted that applicant is not entitled for extension of service on the same ground as in the case of the applicant in OA-2771/20011 (supra).
9. We have heard the learned counsel for the parties. As far as the case of the applicant in Rattan Singh in OA-2771/2011 is concerned, it cannot be said that his case is squarely covered by the Order dated 12.5.2010 of this Tribunal in OA-2760/2009 (supra). In the said OA, applicant had suffered an injury on the index finger. He was medically examined by the DTC and found him unfit. But on medical examination by the Board he was found fit and was appointed as Driver on relaxed standards. On attaining the age of 55 years he was declared medically unfit for further continuation of his service beyond 55 years. However, the case of the applicant in this case is quite different. He met with an accident in the year 1985. Finally, his left leg became shorter than the right leg. The Medical Board did not find it a serious impediment at that time for him to continue to work as a Driver. He was, therefore, given the duty of Driver in 1987 and he worked upto 30.4.2011, i.e. the date of his superannuation at the age of 55 years. The Medical Board on re-examination found him unfit not only for shortening of his leg but for other infirmities such as post-accidental disorders, limping gait, FUC Bilaterial Ferry Shaft, Tibia etc. The condition of health of a person who met with an accident and declared fit for performing duty of Driver in the year 1985 may not remain the same after 25 years. We, therefore, hesitate to direct the respondents to appoint the applicant as Driver against the Medical advice.
10. In the case of applicant Sh. Jag Phool Singh in OA-2433/2011 also, it is an admitted fact that he had met with an accident in March 2002 and he was declared unfit to perform the duty of a driver. When the respondents did not give him any duty to perform and he was not given any wages from September 2003, he had approached the High Court vide WP (C) No.5858/2003 (supra). It was on the direction of the High Court that he was allowed to perform the table duty in Pass Section or as a Vehicle Examiner or as a Peon. But the fact of the matter is that the applicant was basically a Driver for which the retirement age is 55 years. He has given the alternate job of clerical nature only as a matter of concession. Therefore, he cannot claim extension of service upto 60 years as in the case of other clerical staff, as a matter of right.
11. Therefore, in our considered view, both these Original Applications are devoid of any merit and they are dismissed. There shall be no order as to costs.
( Dr. Veena Chhotray ) ( George Paracken )
Member (A) Member (J)
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