Andhra HC (Pre-Telangana)
J.Balagangadhara Reddy vs Apsrtc, Rep. By Its Md, Bus Bhavan, ... on 1 July, 2015
HONBLE SRI JUSTICE R.KANTHA RAO
Writ Petition No.16422 of 2015
01-7-2015
J.Balagangadhara Reddy Petitioner
APSRTC, Rep. by its MD, Bus Bhavan, Mushsirabad, Hyderabad-500 624; and 3
others Respondents
Counsel for the Petitioner: Sri A.G. Satyanarayana Rao
Counsel for Respondents 1 to 4:Sri A.Rama Rao,
Standing Counsel.
<Gist:
>Head Note:
?Cases referred:
1. (2003) 4 SCC 524
HONBLE SRI JUSTICE R.KANTHA RAO
Writ Petition No.16422 of 2015
Date: 01-7-2015
HONBLE SRI JUSTICE R.KANTHA RAO
Writ Petition No.16422 of 2015
Order:
Heard Sri A.G. Satyanarayana Rao, learned counsel
appearing for the petitioner and Sri A.Rama Rao, learned
Standing Counsel for the respondents 1 to 4-
Andhra Pradesh State Road Transport Corporation
(the Corporation, for short).
2. The petitioner is a driver appointed on
11-02-1997 on daily wage basis. His services were
regularised on 01-01-1998. While performing duty on
the bus of the Corporation, the petitioner suffered
a fracture to his right leg on 25-6-2011 as the bus met
with an accident. The petitioner took treatment for
a period of 5 months at the APSRTC Hospital, Tarnaka.
He was subsequently examined by the Senior Medical
Officer, APSRTC Dispensary, Tirupathi and was declared
unfit for the post of driver vide Medical Certificate dated
02-12-2011. The Senior Medical Officer, however, opined
that the petitioner has to be directed to appear before the
APSRTC Medical Board at Hyderabad for its opinion.
3. The petitioner submitted a representation dated
02-12-2011 to the respondents-Corporation for providing
him an alternative post of Record Tracer. Subsequently,
the petitioner was examined at the APSRTC Hospital,
Tarnaka and was found unfit for the post of driver in the
Medical Appeal on 13-12-2011. The petitioner was
further examined by the Medical Board, APSRTC
Hospital, Tarnaka on 12-01-2012 and was found unfit for
the post of driver. The Medical Board, however, opined
that the petitioner is fit for alternative employment.
Again, the petitioner submitted representations dated
27-12-2011 and 28-01-2012 to provide him the
alternative post of Record Tracer. In consideration
thereof, the petitioner was appointed as Record Tracer on
23-4-2013.
4. The grievance of the petitioner is that though
alternative employment was given to the him, his Pay
Scale was not fixed in the cadre of Driver Grade-II and
his service conditions have not been protected in the post
of driver as per Section 47(1) of the Persons with
Disabilities (Equal Opportunities, Protection of Rights
and Full Participation) Act, 1995 (the Act, for short).
It is further submitted by him that after appointing him
in the alternative post of Record Tracer, the annual
increments which are required to be paid to him
considering him to be in the Pay Scale of Driver Grade-II
have not been paid to him. It is also submitted by him
that the salary from 02-12-2011 the date on which he
became medically unfit till 23-4-2013 the date of
providing alternative employment was not paid to him.
5. Under the aforesaid circumstances, the petitioner
filed W.P.No.33979 of 2014 in this Court against the
respondents and this Court disposed of the writ petition
by order dated 12-11-2014 directing the respondents to
protect the Pay Scale of the petitioner in the cadre of
Driver Grade-II, pay the salary for the interregnum period
and maintain the notional seniority for the purpose of
promotion etc., as laid down in the order in
W.P.No.22472 of 2012 which was upheld by the Division
Bench in W.A.No.696 of 2013 and pass appropriate
orders.
6. After passing of the order by this Court in
W.P.No.33979 of 2014, the 2nd respondent-Regional
Manager passed an order stating that in the appointment
order whereunder the petitioner was given alternative
employment, it is specifically mentioned that his seniority
will be reckoned in the post of Record Tracer as and
when he reports for duty as Record Tracer. It is further
mentioned in the order that once the seniority is fixed in
the post of Record Tracer, his past seniority in the
pre-categorized post of Driver Grade-II becomes
automatically ceased and the question of continuing his
seniority in the post of Driver Grade-II does not arise.
Further, it is mentioned that the post of Assistant Depot
Clerk (ADC) is being filled from among the Drivers Grade-
I by transfer and by promotion from the Drivers Grade-II
to the extent of the availability of posts and reservations
and roaster points for which the drivers who are in active
service as drivers and physically discharging the duties of
drivers are only eligible whereas the drivers appointed on
alternative employment in the other category posts are
not entitled for such promotion since their seniority in
the post of driver is deleted once they are appointed in
the alternative post.
7. It is stated as regards the payment of wages
during the interregnum period that since the driver was
under medically unfit and not attended work till
finalization of the case by the Medical Board, wages
cannot be drawn and paid under the policy no work no
pay. According to the 2nd respondent, while working in
one particular cadre of post, even though the pay is
protected in the earlier post, wages can only be drawn in
his present time scale, otherwise it tantamounts to
violation of APSRTC Employees Pay and Allowances
Regulations, 1964. It is said that since the petitioners
pay is protected as per the Service Regulations in force
and absorbed in the time scale of Record Tracer only,
his seniority in the post of Record Tracer will be
continued from the date of his reporting as Record Tracer
as per the Office Order dated 16-02-2012.
8. The learned Standing Counsel for the
respondents-Corporation submits that the order passed
by the 2nd respondent-Regional Manager is in accordance
with the service conditions governing employees of the
Corporation and therefore, the same cannot be found
fault with.
9. I have gone through the proceedings issued
by the 2nd respondent-Regional Manager, dated
13-4-2015. The said proceedings are not in conformity
with the order passed by this Court.
10. In this connection, it is necessary to extract
Section 47 of the Act, which reads 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 employees 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 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.
11. The provisions of Section 47 of the Act are
mandatory. The Section lays down specifically that
no establishment shall dispense with, or reduce in rank,
an employee who acquires a disability during his service.
It also further lays down that no promotion shall be
denied to a person merely on the ground of his disability.
12. The Honble Supreme Court in KUNAL SINGH
v. UNION OF INDIA has laid down as under:
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; if it is not possible to adjust the
employee against any post he will be kept on
a supernumerary post until a suitable post is
available or he attains the age of superannuation,
whichever is earlier. Added to this, no promotion
shall be denied to a person merely on the ground of
his disability as is evident from sub-section (2) of
Section 47. Section 47 contains a clear directive
that the employer shall not dispense with or reduce
in rank an employee who acquires a disability
during the service. In construing a provision of
social beneficial enactment that too dealing with
disabled persons intended to give them equal
opportunities, protection of rights and full
participation, the view that advances the object of
the Act and serves its purpose must be preferred to
the one which obstructs the object and paralyses the
purpose of the Act. Language of Section 47 is plain
and certain casting statutory obligation on the
employer to protect an employee acquiring disability
during service.
13. Thus, complete protection is given under the Act
to an employee who acquires the disability during his
service. Any rules governing the services of employees of
the respondents-Corporation cannot override the
statutory provisions. Thus, Section 47 of the Act
operates notwithstanding any rules governing the
employees of the respondents-Corporation and it has
overriding effect. The provisions of the Act as well as the
judgment of the Supreme Court in KUNAL SINGH
(1 supra) clearly indicate that the service of an employee
who has acquired disability shall be protected completely.
Therefore, in the considered opinion of this Court, even if
the petitioner after acquiring disability is provided
alternative post, in a lower cadre, his pay scale in the
original post which he was holding has to be maintained.
As Section 47 of the Act provides for protection in respect
of the pay scale, service benefits and also promotion even
if the petitioner is discharging duties in a lower cadre, the
Corporation has to consider the case of the petitioner for
promotion as if he is working in the original post.
14. In the instant case, the promotional post for the
petitioner, who is a driver, is Assistant Depot Clerk.
If he acquires the seniority and eligibility to be promoted
to the post of ADC by virtue of the provisions of
Section 47 of the Act, it is obligatory on the part of the
Corporation to consider the case of the petitioner for
promotion as ADC if he is able to discharge the duties of
ADC and he has the requisite qualifications for the post.
Even though after being declared unfit for the post of the
driver, he is working in the alternative post of record
tracer which is lower in rank. I am not in acceptance
with the contention urged by the learned Standing
Counsel for the respondents-Corporation that Section 47
of the Act only protects the petitioner in respect of
payment of salary but not in any other respects.
Further, after receiving the injury which resulted in
disability, the period during which the petitioner was
out of duty shall be treated as the period on duty for
payment of salary and no leaves earned by the employee
can be adjusted to the said period.
15. Another important aspect is that from which
date the petitioner is entitled for the wages between the
period of incurring disability and acquiring alternative
employment. It has been argued that when the Medical
Board of the Corporation ultimately declares the
petitioner as unfit for the post he was doing, it has to be
taken as a crucial date for payment of wages in the
interregnum period. I am not in acceptance with the said
contention. The period shall be computed from the date
on which the petitioner was initially found medically unfit
by the authorities of the hospital run and managed by
the Corporation and ultimately, if it is confirmed by the
Medical Board in the subsequent examinations.
Therefore, though the petitioner was provided alternative
employment of Record Tracer, the Corporation is under
obligation to maintain his seniority in the post of Driver
Grade-II and consider his case for promotion at the time
when he becomes eligible for promotion by counting his
seniority in the cadre of driver as such. In the instant
case, the petitioner is entitled for the salary from
02-12-2011 i.e. the date on which the Senior Medical
Officer, Corporation Dispensary, Tirupathi found him
unfit for the post of driver till the date of 23-4-2013 when
he was provided with alternative employment. The said
period shall be treated as the period on duty and no
leaves earned by the petitioner shall be adjusted towards
the period of absence during which he became unfit on
account of disability.
16. For the foregoing reasons, the writ petition is
allowed. The miscellaneous petitions, if any, pending in
this writ petition shall stand closed. No costs.
___________________
R.KANTHA RAO, J.
01st July, 2015.