Central Administrative Tribunal - Delhi
Munshi Lal vs Delhi Transport Corporation on 12 May, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI. O.A. No. 2760/2009 New Delhi this the 12th day of May, 2010 Honble Mr. Shanker Raju, Member (J) Honble Dr. Ramesh Chandra Panda, Member (A) Munshi Lal, Driver, B. No.11693, NND, S/o Shri Iswhar Das, R/o House No.1920, Janta Flats, GTB Enclave, Nad Nagri, Delhi-110093. -Applicant (By Advocate Shri Prasant Kalra for Shri Anil Mittal) -Versus- Delhi Transport Corporation, I.P. Estate, New Delhi-110002. (Through Chairman-cum-Managing Director) (By Advocate Shri Sarfaraz Khan) O R D E R Honble Mr. Shanker Raju, Member (J):
Applicant, a retried Driver from Delhi Transport Corporation (DTC) impugns respondents order dated 1.5.2009 and 14.5.2009, whereby as per the policy laid down in 1963 claim of applicant for extension in service till the age of 60 years has been turned down on medical unfitness.
2. Appointment on re-employment with benefits is the claim.
3. Applicant, who had suffered an injury on the index finger, was medically examined by the DTC at the time of induction as Driver and was found unfit on 24.8.1982, but on medically examination by the Board was found fit and was appointed as a Driver on relaxed standards. As such, disability has not come in his way of performing duties and from time to time till he attained the age of 55 years he was continued as a Driver. However, as per the policy of respondents dated 4.7.1963 where continuation beyond 55 years till 60 years as a Driver is subject to medical examination. The applicant was medically examined but was declared unfit and was denied the benefit, which is assailed on the ground that having continued the applicant without any impediment to perform his duty as a Driver despite his disability till the age of 55 years, now denying appointment on extension till 60 years, the respondents are barred by the principle of approbating and reprobating simultaneously, estoppel and legitimate expectation of the applicant.
4. On the other hand, learned counsel of respondents insofar as disability is concerned, referred to a batch of cases in LPA No.2123/2006 Dalel Singh v. DTC, decided on 09.01.2009, where the Disability Act has not been found applicable in such cases. Learned counsel would further contend that the applicants amputated right index finger was not considered in the medical record and as he was not found fit at the time of extension as per the policy ibid and hence he is not entitled to be re-employed.
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.
(Dr. Ramesh Chandra Panda) (Shanker Raju) Member (A) Member (J) San.