Central Administrative Tribunal - Delhi
Satish Kumar vs Delhi Transport Corporation on 8 October, 2013
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.2295/2013 O.A.No.2550/2013 O.A.No.3355/2013 Order reserved on 27th September 2013 Order pronounced on 8th October, 2013 Honble Mr. Sudhir Kumar, Member (A) Honble Mr. A.K. Bhardwaj, Member (J) O.A.No. 2295/2013 1. Balwan Singh, Driver No.24776 s/o Bharat Singh r/o V&PO Harsana Kalan District Sonepat, Haryana 2. Deepak Kumar, Driver B.No.24500 s/o Sukhpal Singh r/o F-25, A/1, Rajiv Nagar, Begampur Delhi-86 3. deleted (as written in memo of parties) 4. Surender Singh, Driver, B.No.24664 s/o Mahavir Singh r/o V & PO Surani Tehsil Narnaul, District Mahendargarh Haryana 5. Pawan Kumar, Driver, B.No.25310 s/o Manglu r/o H.No.13/87, Raj Nagar District Ghaziabad, UP 6. deleted (as written in memo of parties) 7. Suneel Kumar, Driver, B.No.24888 s/o Krishan Lal r/o V & PO Punak District Karnal, Haryana 132051 8. Pardhan Singh, Driver, B.No.24891 s/o Gheesa Ram r/o Village Mor Khedi Tehsil Sampla, District Rohtak, Haryana 9. Naresh Pal, Driver, B.No.24915 s/o Natthu Ram r/o V & PO Vijrol District Baghpat, UP 10. Tarun Kumar, Driver, B.No.24383 s/o Raj Kumar r/o 10B, Kamla Park, Dharam Pura Najafgarh, New Delhi-43 11. Satbir, Driver, B.No.24665 s/o Tek Ram r/o V & PO Kakroi District Sonepat, Haryana 12. Dilsher, Driver, B.No.25299 s/o Lal Singh r/o Village Mahara, Tehsil Gohana District Sonepat, Haryana 13. Kuldip Singh, Driver, B.No.24694 s/o Satya Prakash r/o V&PO Nahari District Sonepat, Haryana 14. Dharam Bir Singh, Driver, B.No.24825 s/o Shyam Singh r/o VPO Sirsali, Tehsil Baraut District Baghpat, UP 15. Jai prakash Yadav, Driver, B.No.24847 s/o Mangu Ram Yadav r/o V&PO Mankari Siri Tehsil Neem Ka Thana, District Seekar Rajasthan-332711 16. Vijay Singh, Driver, B.No.24786 s/o Balwant Singh r/o Village Bhagwanpur (Nangal) Tehsil Kosli, District Rewari Haryana-12411 17. Sushil Kumar, Driver, B.No.24751 s/o Jai Bhagwan r/o D-23, Gali No.6, Rajapure Utam Nagar, New Delhi 18. Sunil, Driver, B.No.24508 s/o Ran Singh r/o Village Harsana Khurd District Sonepat, Haryana 19. Kameshwar Kumar, Driver, B.No.24797 s/o Mahendra Singh c/o Mukund pur, Part II Gali No.20, Delhi-42 20. Joginder, Driver, B.No.25254 s/o Bishan Singh r/o V&PO Kheri Dhamkan Tehsil Gohana, District Sonepat Haryana 21. Surinder Singh, Driver, B.No.24789 s/o Surat Singh r/o V&PO Malikpur New Delhi-73 22. Raj Kumar Singh, Driver, B.No.24434 s/o Bhagwat Singh r/o H.No.1431/11, Gali No.2 Mohalla Sashtri Nagar Buland Shahar, UP 23. Gurmail Singh, Driver, B.No.23961 s/o Jawala Singh r/o H.No.42, Gurunanak Road Kewal Park, Azad Pur Delhi-33 24. Satish Khatri, Driver, B.No.24779 s/o Daya Nand r/o V& PO Panjab Khor, Delhi-41 25. Naseeb Singh, Driver, B.No.24720 s/o Jai Karan r/o V & PO Mungan District Rohtak, Haryana 26. Ram Niwas Kothari, Driver, B.No.24752 s/o Sagar Ram Kothari r/o V & PO Kadma Tehsil Charkhi Dadri, District Bhiwani Haryana 27. Jaswant, Driver, B.No.24950 s/o Suraj Bhan r/o H.No.170, Puth Kalan Delhi-86 28. Rajesh Sharma, Driver, B.No.23966 s/o Pyare Lal r/o V&PO Mundhela Klan Delhi-73 29. Raghuveer Parshad Gurjar, Driver, B.No.24637 s/o Ramji Lal Gurjar r/o V&PO Chhokarwara Tehsil Sikrai, Dhani Teen Jag District Dosa, Rajasthan 303326 30. Mukesh Kumar, Driver, B.No.24231 s/o Balbir Singh r/o V&PO Kair New Delhi-43 31. Kharak Singh, Driver, B.No.24285 s/o Ram Chander r/o V&PO Silani Jalim Jhajjar, Haryana 32. Sudhir Kumar, Driver, B.No.24389 s/o Sukhbir Singh r/o RZ 94, Sudhan Garden Old Roshan Pura Near Gurudwara, Najafgarh New Delhi-43 33. Anuj Kumar Tiwari, Driver, B.No.25315 s/o Surender Babu Tiwari r/o H.No.712/2, Karamganj (Champa Bagh) Itawaha (UP) 34. Shiva Kant, Driver, B.No.25316 s/o Asharfi Lal r/o Village Kishorepur, PO Jabalpur District Kanpur (Dehat)-209312 (UP) 35. Harkesh, Driver, B.No.24282 s/o Kalla Singh r/o V&PO Ghatta, Tehsil Kama District Bharatpur, Rajasthan 36. Rajinder, Driver, B.No.24396 s/o Jai Bhagwan r/o V&PO Dhansa New Delhi-73 37. Shiv Krishan, Driver, B.No.24733 s/o late Suraj Bhan r/o V&PO Mehlana Tehsil & District Sonepat Haryana 38. Raj Kumar, Driver, B.No.25306 s/o Ram Mehar r/o Village Tihar Malik Sonepat (Haryana) 39. Subhash Chand, Driver, B.No.24723 s/o Mohar Singh Yadav r/o V&PO Isrodha, Tehsil Tijara District Alwar, Rajasthan-301411 40. Parveen Shokeen, Driver, B.No.25015 s/o Rajveer Singh Shokeen r/o House No.755, V&PO Dichaun Kalan New Delhi-43 41. Jasbir, Driver, B.No.24980 s/o Malkhan r/o House No.339, Mangolpur Kalan New Delhi-85 42. Krishan Kumar, Driver, B.No.24594 s/o Balbir Singh r/o V&PO Khanda Khurd Tehsil Kharkhoda, District Sonepat, Haryana 43. Yogendra Singh, Driver, B.No.24861 s/o Ram Vir Singh r/o House No.3705, Sector 2 Mahalaxmi Apartment, Dwarka New Delhi-75 44. Surender Kumar Gurjar, Driver, B.No.24932 s/o Surgyan Singh Gurjar r/o House No.GA-75, Pul Prahalad Pur (Badarpur Border) Delhi-44 45. Lakshman, Driver, B.No.25291 s/o Gopal Singh r/o E-55/25, Dilshad Vihar Colony Dilshad Garden, Shahdra, Delhi-95 46. Krishan Kumar, Driver, B.No.24304 s/o Ishwar Singh r/o Block C/2-83, Swaran Park Mundka, Delhi-41 47. Subhash Chand, Driver, B.No.25330 s/o Babu Lal r/o Dhani Jajma, PO Nangal Niniya Tehsil Narnaul, District Mahendergarh Haryana 48. Janak Singh, Driver, B.No.25234 s/o Sadhu Ram r/o Village Kailash, P P Tikri Tehsil & District Karnal Haryana 49. Ashok Kumar Yadav, Driver, B.No.25246 s/o Shiv Charan Yadav r/o House No.1157, Pooth Khurd Delhi-39 50. Ashok Kumar, Driver, B.No.24361 s/o Nafe Singh r/o House No.1035, Pana Paposian Narela, Delhi-40 51. Shri Bhagwan, Driver, B.No.25219 s/o Raj Pal r/o House No.154, Gali No.13 Sarojini Park, Shashtri Nagar Opposite Temple, Delhi-31 52. Harish Chandra Mishra, Driver, B.No.24753 s/o Jai Rudra Mishra r/o House No.D-200, Prem Nagar-III Block A, Kirari Suleman Nagar Delhi-86 53. Ram Avadh, Driver, B.No.24436 s/o Ram Naresh r/o House No.1766, Sector 9 Faridabad, Haryana-121006 54. Ram Kumar Bhati, Driver, B.No.24236 s/o Chand Bhati r/o H.No.17, Village Gopal Pur PO Azad Pur, Delhi 55. Him Raj Singh, Driver, B.No.24787 s/o Rakam Singh r/o Village Khairpur, PO Saidpur District Bulandshahar, UP 56. Yogesh Kumar Jaga, Driver, B.No.24495 s/o Gopal Lal Jaga r/o Village Hira Wala, PO Lalwas CRPF Camp, Tehsil Jamwa Ramgarh Jaipur, Rajasthan-302027 57. Ramesh Chand Gurjar, Driver, B.No.24889 s/o Jaman Lal Gurjar r/o Village Arniyan Kankar, PO Kathmana Tehsil Piplu, District Tonk, Rajasthan 58. Naveen Kumar, B.No.25345 s/o Drayio Singh r/o C-61 Mohan Garden Uttam Nagar, Delhi-59 59. Pawan Sharma, B.No.25309 s/o Jai Bhagwan r/o V & PO Jahangirpur District Jhajjar, Haryana 60. Yash Pal, B.No.25258 s/o Jeet Singh r/o V & PO Chamarian Rohtak, Haryana 61. Narinder, B.No.25333 s/o Ved Pal V&PO Khubru, Tehsil Ganaur District Sonepat, Haryana 62. Jagdish Narain Meena, B.No.225334 s/o Surji Ram Meena r/o Village Khartala, PO Sainthal Tehsil & District Sauntha Rajasthan 63. Mahesh Kumar, Driver, B.No.25303 s/o Tej Singh r/o V & PO Khatiwas District Jhajjar, Haryana 64. Vinod Kumar, Driver, B.No.25351 s/o Richpal r/o Village Haria Khera, PO Baleni District Baghpat, UP O.A.No.2550/2013 1. Sanjay Kumar, Driver B.No.23889 s/o Om Prakash r/o Village Harevali, Bawana, Delhi-39 2. Sunil Kumar, Driver, B.No.25347 s/o Inder Singh r/o 936, Village & PO Dariya Pur Delhi-39 3. Dharamvir Singh, Driver, B.No.25162 s/o Mukhtiyar Singh r/o Village & PO Mungesh Pur Delhi-39 4. Jagpal Rana, Driver, B.No.25185 s/o Subhram r/o Village & PO Mungesh Pur Delhi-39 5. Sushil Kumar, Driver, B.No.24288 s/o Tara Chand r/o H.No.338, Village Prahlad Pur Bagar Delhi-42 6. Hem Ran, Driver, B.No.24387 s/o Pritam Singh r/o A-15, Mahesh Garden Najafgarh, New Delhi-48 7. Raj Pal Singh, Driver, B.No.25267 s/o Sher Singh r/o F-25, A/1, Rajiv Nagar, Begampur Delhi-86 8. Bhupender Singh, Driver, B.No.24216 s/o Sahib Singh r/o B-145, Gali No.2 West Vinod Nagar, Delhi-92 O.A.No.3355/2013 Satish Kumar, Driver, B.No.24292, Nangloi Depot s/o Kartar Singh r/o Village Garhi Randhala, PO Nizampur Delhi-81 ..Applicants (By Advocate: Mr. Anil Mittal) Versus Delhi Transport Corporation I P Estate New Delhi 2 Through Chairman-cum-Managing Director ..Respondents (By Advocates: Mr. Ajesh Luthra, Mrs. Avnish Ahlawat, Mr. N.K. Singh and Ms. Tanya Ahlawat) O R D E R
Mr. A.K. Bhardwaj:
The aforementioned Original Applications (O.A.Nos.2295, 2550 and 3355 of 2013) raise common issue of law and facts, thus are taken up for disposal by a single order. Since in the case of Satish Kumar (applicant in O.A.No.3355/2013), Mr. Anil Mittal, learned counsel submitted at the outset that the issue raised in this particular OA is identical to the issues raised in other two OAs, no notice was issued in the said OA and with the consent of learned counsels for the parties, it was taken up for hearing at admission stage, thus no counter reply was filed in the said case. Nevertheless, the applicant in the said OA was also declared medically unfit being colour blind (DDV & DNV). As can be seen from the pleadings of the parties, the facts of these cases in brief are that the Delhi Transport Corporation (DTC) sent a requisition to the Delhi Subordinate Services Selection Board (DSSSB) vide letter dated 7.11.2007 for recruitment of 10,000 Drivers to run the DTCs fleet of busses in Delhi. In response, the DSSSB published an advertisement on 21.12.2007 inviting applications for the post. The last date for submission of applications was 21.1.2008. Selection was conducted on the basis of written examination and driving skill test. The dossiers/files in respect of selected candidates were sent to the DTC for further action, such as medical examination and training, etc. at its end. The Deputy Secretary (P&P), DSSSB, Govt. of NCT of Delhi while forwarding the dossiers of the applicants also sent a copy of Office Order No.52 dated 30.9.2008 to the DTC wherein it was provided that their appointment would be subject to fulfillment of certain conditions of eligibility, viz. (i) satisfactory character and antecedents, (ii) medical fitness; and (iii) verification of relevant original documents/certificates. The appointment of the selected candidates was to be made on satisfaction of the competent authority regarding their eligibility, as prescribed in the recruitment rules. In the event of there being any discrepancy / shortcoming in the documents / eligibility of any of the candidates, the DSSSB / DTC had a right to cancel his/their selection / appointment at any stage. The applicants were subjected to medical examination by the prescribed medical board of the DTC, which could consider them unfit for the appointment being colour blind. All those candidates, who were declared medically unfit, including the applicants, made representations for redressal of their grievances to the Corporation. Considering the representations, a decision was taken by the DTC vide Resolution No.90/2009 dated 22.12.2009 to take up the matter with Guru Nanak Eye Centre (GNEC) for fresh medical examination of those candidates, who were declared medically unfit by the DTC medical board as per laid down medical standard of the Corporation. Accordingly, the concerned candidates, including the applicants, were directed to GNEC for their re-medical examination. In GNEC, the applicants were examined by different doctors and were declared fit. Finally, all the applicants were appointed in the Corporation as Drivers and they joined the services. Subsequently, one of the candidates, Mr. Vinod Kumar, B.No.24243, who was initially found medically unfit by the DTC medical board and later found fit by the GNEC, like the applicants, caused an accident, as a result he was re-examined by the DTC medical board, which found him unfit for the post of Driver due to DDV & DNV. In view of the medical standard of Mr. Vinod Kumar, the Chief Medical Officer, In-charge, DTC suggested that all such Drivers, who were declared fit by GNEC, need to be directed for re-medical examination to avoid any accident in future. In the circumstances, the DTC medical board passed Resolution No.25/2012 dated 12.4.2012 to get all such Drivers, who were declared fit by the GNEC on their re-medical examination, medically examined by an independent medical board for directing number of defective vision cases. Such Resolution placed on record by the Corporation as Annexure R-2 reads as under:-
Extracts from the Draft Minutes of the DTC Board Meeting held on 12.04.2012, as approved by the Chairman.
Resolution No.25/2012: Item 15/2012: Conducting re-medical examination in respect of those candidates (Selected on regular basis through DSSSB for the post of driver in DTC) by an independent Medical Board who have been declared medically unfit by the DTC Medical Board.
(Shri A.K. Goyal, CGM(P) was called in) The DTC Board considered the Agenda item and after detailed discussion thereon, approved that-
All such DSSSB candidates (approx.. 413 amongst the 1st lot of 5148 who have already been working in DTC as drivers and 170 candidates who have applied for re-test out of total 216 candidates as o date amongst the 2nd lot of 2299 candidates) who have been declared medically unfit by the DTC Medical Board, may now be got re-medically examined by an Independent Medical Board, as resolved by the DTC Board vide Resolution No.34/2011 dated 11.3.2011 as and when Independent Medical Board is constituted as per para-ii below.
For the above purpose, an Independent Medical Board comprising 03 (three) Doctors, one Doctor (Eye Specialist) from Guru Nanak Eye Centre (GNEC) or any other Govt. Hospitals of the GNCTD considering no. of defective vision cases and another Govt. Doctor (GDMOs) from GNCTD for other cases of deformities of the candidates and one Doctor from DTC Medical Board be constituted to examine both the groups of drivers mentioned in Para (i) numbering approx. 413 & 216 drivers respectively.
The Board further directed that all previous medical reports / relevant medical papers of such cases for re-medical be placed before the Independent Medical Board.
2. The Principal Secretary (Health), Department of Health & Family Welfare, Delhi Secretariat, New Delhi constituted an independent medical board, vide Order No. F/25/88/X/MB-DTC/H&FW/5062-70 dated 26.9.2012, for re-medical examination of such Drivers. The said Order issued in this regard reads as under:-
Reference request received from Chairman-cum-MD, DTC vide letter No.PLD-III/(Driver)/DSSSB/2012/1745 dated 01.06.2012 regarding nomination of two Doctors to be a part of Medical Board alongwith one DTC Doctor for conducting re-medical examination of DSSSB selected drivers.
The Competent Authority after due consideration of request, orders for constitution of Medical Board consisting of the following doctors for Re/Medical examination of DSSSB selected drivers.
Dr. Anil Kumar Moghe, CMO (SAG), Central Distt, DHS (Member).
Dr. Gia Chaudhary, Associate Professor, GNEC (Member) for first seven days.
Dr. Punita Sodhi, Associate Professor, GNEC (Member) for next seven days.
Dr. Subhash Dahiya, Professor, GNEC (Member) till the Medical Examination comes to end.
Third Member of the Medical Examination Board will be nominated by the CMD, DTC.
This issues with prior approval of Pr. Secretary (H&FW).
3. A Circular dated 18.10.2012 was issued to all the Unit Officers requiring the Drivers covered by the Resolution No.25/2012 dated 12.4.2012 to report to the independent medical board for their re-medical examination. However, the Board so constituted could not proceed with the re-medical examination and subsequently, vide Order dated 17.4.2013, the Superintendent (H-II), Govt. of NCT of Delhi, Health & Family Welfare Department, Delhi Secretariat, IP Estate, New Delhi, conveyed that the re-medical examination of the applicants might be conducted by the Government hospitals, viz. Din Dayal Hospital, GTB Hospital and Lal Bahadur Shastri Hospital comprising 3 doctors (2 doctors from Government hospital and 1 doctor, CMO, DTC) as members of the independent medical board. The Order dated 17.4.2013 reads as under:-
Reference request received from Chairman-cum-MD, DTC vide note bearing Dy. No. DTCPLD (HQ) No.1111 F dated 12/04/2013 regarding nomination of Doctors to be a part of Medical Board alongwith one DTC Doctor for conducting medical re-examination of DSSSB selected drivers.
The Competent Authority after due consideration, hereby directs constitution of two Medical Boards consisting of the following doctors for medical re-examination of cases relating to Eyes Defects:
Ist Medical Board to conduct Medical Re-Examination at Deen Dayal Upadhyay Hospital
(a) Dr. H.C. Gandhi, GDMO, Opthomologist, DDUH
(b) Dr. Deepak Verma, GDMO, Opthomologist, DDUH
(c) Third Member of the Medical Examination Board will be nominated by the CMD, DTC The Board will work at DDU Hospital for first 15 days to examine the cases of eye defects.
2nd Medical Board to conduct Medical Re-Examination at Guru Teg Bahadur Hospital
(a) Dr. G.K. Dass, Professor, GTB Hospital
(b) Dr. P.K. Sahu, Professor, GTB Hospital
(c) Third Member of the Medical Examination Board will be nominated by the CMD, DTC The Board will work at GTB Hospital for remaining days till the medical examination concludes to examine the cases of eye defects.
3rd Medical Board to conduct Medical Re-Examination at Lal Bahadur Shastri Hospital The Competent Authority further directs constitution of 3rd Medical Board consisting of the following doctors for examining the cases relating to Orthopedics Defects, Height and Amputation etc. and this board will work at LBS Hospital.
Dr. L.M. Singh, SAG, CMO, General Physician, LBS Hospital.
Dr. Hari Mansukhani, SAG, CMO, Orthopedics, LBS Hospital Third Member of the Medical Examination will be nominated by the CMD, DTC.
It is further directed that the Medical Board constituted earlier by this department vide order No.F.25/88/X/MB-DTC/H&FW/5062/-70 dated 26-09-2012 shall stand discontinued henceforth.
List of candidates, after examination date and the hospital at which they will be examined will be co-ordinated and intimated to the respective hospitals by the DTC.
This has the approval of Secretary (H&FW).
4. All the applicants were reexamined and found medically unfit being colour blind. The relevant details regarding the applicants, as mentioned by the respondents in their counter reply, except in O.A.No.3355/2013, read as under:-
S. No. Name Fathers Name B No. Unit Remarks
1. Balwan Singh Bharat Singh 24776 HND-1 Unfit on 6.6.13 due to Defective Distant Vision/ Defective Near vision (DDV/DNV) & Colour Blind
2. Deepak Kumar Sukhpal Singh 24500 WPD Unfit on 8.5.13 due to Colour Blind
3. Surender Singh Mahabir Singh 24664 HND-I Unfit on 6.6.13 due to Colour Blind
4. Pawan Kumar Manglu 25310 EVND Unfit on 5.6.13 due to DDV & Colour Blind
5. Suneel Kumar Krishan Lal 24888 DGD Unfit on 9.5.13 due to DDV / DNV & Colour Blind
6. Pardhan Singh Ghisa Ram 24891 KNJ Unfit on 14.5.13 due to Colour Blind
7. Naresh pal Nathu Ram 24915 MD-I Unfit on 15.5.13 due to Colour Blind
8. Tarun Kumar Raj Kumar 24383 DWS-8 Unfit on 27.5.13 due to DDV/DNV
9. Satbir Tek Ram 24665 KPD Unfit on 14.5.13 due to Colour Blind
10. Disher Lal Singh 25299 MD-1 Unfit on 6.6.13 due to Colour Blind
11. Kuldeep Singh Satya Prakash 24694 GTK Unfit on 6.6.13 due to Colour Blind
12. Dharambir Singh Sham Singh 24825 SMPD Unfit on 6.5.13 due to Colour Blind
13. Jai Prakash Yadav Mangu Ram Yadav 24847 MPD Unfit on 20.5.13 due to Colour Blind
14. Vijay Singh Balwant Singh 24786 MPD Unfit on 20.5.13 due to Colour Blind
15. Sushil Kumar Jai Bhagwan 24751 MPD Unfit on 20.5.13 due to Colour Blind
16. Sunil Ran Singh 24508 MPD Unfit on 20.5.13 due to Colour Blind
17. Kameshwar Kumar Mahendra Singh 24797 KPD Unfit on 14.5.13 due to Colour Blind
18. Joginder Bishan Singh 25254 RHN-4 Unfit on 6.5.13 due to Colour Blind
19. Surender Singh Surat Singh 24789 HND-1 Unfit on 6.6.13 due to Colour Blind
20. Raj Kumar Singh Bhagwat Singh 24434 MD-2 Unfit on 15.5.13 due to DDV /DNV & Colour Blind
21. Gurmel Singh Jwala Singh 23961 SMPD Unfit on 6.5.13 due to Colour Blind
22. Satish Khatri Daya Nand 24779 SMPD Unfit on 7.5.13 due to Colour Blind
23. Naseeb Singh Jai Karan 24720 DWS-8 Unfit on 5.6.13 due to Colour Blind
24. Ram Niwas Kothari Sagar Ram Kothari 24752 DWS-2 Unfit on 5.6.13 due to Colour Blind
25. Jaswant Suraj Bhan 24950 DWS-2 Unfit on 9.5.13 due to Colour Blind
26. Rajesh Sharma Pyare Lal 23966 HND-3 Unfit on 14.5.13 due to Colour Blind
27. Raghubir Prasad Gujar Ramji Lal Gujar 24637 HND-3 Unfit on 14.5.13 due to Colour Blind
28. Mukesh Kumar Balvir Singh 24231 HND-1 Unfit on 6.6.13 due to Colour Blind
29. Kharag Singh Ram Chander 24285 HND-2 Remained absent at DDU Hospital. The Re-medical examination is yet to be held at GTB
30. Sudhir Kumar Sukhbir Singh 24389 DWS-8 Unfit on 5.6.13 due to Colour Blind
31. Anuj Kumar Tiwari Surender Babu 25315 Noida Unfit on 7.6.13 due to Colour Blind
32. Shiv Kant Asharfi 25316 Noida Unfit on 7.6.13 due to Colour Blind
33. Harkesh Kala Singh 24282 TKD Unfit on 8.5.13 due to Colour Blind
34. Rajender Jai Bhagwan 24396 DWS-8 Unfit on 5.6.13 due to Colour Blind
35. Shiv Krishan Suraj Bhan 24733 WPD Unfit on 8.5.13 due to Colour Blind
36. Raj Kumar Ram Mehar 25306 Narela Unfit on 20.5.13 due to Colour Blind
37. Subhash Chand Mohar Singh 24723 DWS-8 Unfit on 5.6.13 due to Colour Blind
38. Parveen Shokeen Rajbir Singh 25015 DWS-8 Unfit on 5.6.13 due to Colour Blind
39. Jasbir Malkhan 24980 MD-4 Unfit on 20.5.13 due to Colour Blind
40. Krishan Kumar Balbir Singh 24594 Narela Unfit on 6.6.13 due to DDV / DNV & Colour Blind
41. Jogender Singh Rambir Singh 24861 TKD Unfit on 8.5.13 due to Colour Blind
42. Surender Kumar Surjan Singh 24942 Noida Unfit on 7.6.13 due to Colour Blind
43. Lakshman Gopal Singh 25291 NND Unfit on 7.6.13 due to Colour Blind
44. Krishan Kumar Ishwar Singh 24304 SNPD Unfit on 7.5.13 due to Colour Blind
45. Subhash Chand Babu Lal 25330 HND-1 Unfit on 6.6.13 due to Colour Blind
46. Janak Singh Sadhu Ram 25234 BBM-1 Unfit on 5.6.13 due to Colour Blind
47. Ashok Kumar Yadav Shiv Charan Yadav 25246 BBM-1 Unfit on 9.5.13 due to Colour Blind
48. Ashok Kumar Nafe Singh 24361 BBM-1 Unfit on 5.6.13 due to Colour Blind
49. Shri Bhagwan Raj Pal 25219 EVND Unfit on 5.6.13 due to Colour Blind
50. Harish Chander Mishra Jai Rudra Mishra 24753 MD-2 Unfit on 15.5.13 due to Colour Blind
51. Ram Avadh Ram 24436 KJD Unfit on 14.5.13 due to Colour Blind
52. Ram Kumar Bhati Chand Bhati 24236 KJD Unfit on 14.5.13 due to DDV / DNV & Colour Blind
53. Him Raj Singh Rakam Singh 24787 DGD Unfit on 23.5.13 due to DDV/DNV
54. Yogesh Kumar Gopal Ram 24495 SNPD Unfit on 7.5.13 due to Colour Blind
55. Ramesh Chand Gujar Jamna Lal Gujar 24889 SNPD Unfit on 7.5.13 due to Colour Blind
56. Navin Kumar Daryao Singh 25345 MD-2 Unfit on 15.5.13 due to Colour Blind
57. Pawan Sharma Jai Bhagwan 25309 HND-2 Unfit on 6.6.13 due to Colour Blind
58. Yash Pal Jeet Singh 25258 WPD Unfit on 8.5.13 due to Colour Blind
59. Narender Ved Pal 25333 MD-4 Unfit on 15.5.13 due to Colour Blind
60. Jagdish Narain Meena Surje Ram Meena 25334 MD-4 Unfit on 15.5.13 due to Colour Blind
61. Mahesh Kumar Tej Singh 25303 PGD Unfit on 7.6.13 due to DNV & Colour Blind
62. Vinod Kumar Richh Pal 25351 DGD Unfit on 9.5.13 due to Colour Blind
5. In the aforementioned circumstances, the Corporation laid them off the duties in the months of April / May 2013 and they filed the present Original Applications praying therein for issuance of directions to the respondent-Corporation to assign them duties forthwith on any post for which they are considered fit.
6. Mr. Mittal, learned counsel for applicants in all the OAs submitted with aplomb and vehemence:
In terms of Circular dated 20.3.2006, applying the provisions of Section 47 of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short Disability Act 1995), the respondent-Corporation should shift the applicants to some other post with the same pay scale and other service benefits, The act of the respondent in subjecting the applicants alone to re-medical examination in May 2013 and not all those candidates, who were appointed along with them, is discriminatory, arbitrary and violative of Articles 14 and 16 of the Constitution of India, Having appointed the applicants as Driver after subjecting them to due medical examination, the respondent-Corporation was estopped from subjecting them to any further medical examination; and The respondent-Corporation was in the process of terminating the services of the applicants in violation of the principles of natural justice and fair play.
7. In support of his claim, Mr. Mittal, learned counsel for applicants placed reliance upon the following judicial precedents:
Honble Supreme Court:
DDA & others v. Joginder S. Monga & others, (2004) 2 SCC 297, Bhagwan Dass & another v. Punjab State Electricity Board, (2008) 1 SCC 579; and Bharat Singh v. Management of New Delhi Tuberculosis Centre, New Delhi & others, AIR 1986 SC 842.
Honble High Courts:
Dilbagh Singh v. Delhi Transport Corporation, 2005 (84) DRJ 208, Balasaheb v. Union of India & others, 2011 (2) SLR 451, Om Parkash v. Union of India & others, 2009 (4) SLR 418, Shri Subey Ram v. Delhi Transport Corporation & another (CWP No.3545/1993) decided on 13.9.1994, Delhi Transport Corporation (DTC) v. Ishwar Singh & others (CWP No.1702/2003) decided on 1.11.2004, Delhi Transport Corporation v. Ram Phal & others (WP (C) No.1697/2003) decided on 1.11.2004; and Delhi Transport Corporation v. Suraj Bhan & others, (WP (C) No.1628/2004) decided on 23.2.2010.
8. On the other hand, Mrs. Avnish Ahlawat and Mr. Ajesh Luthra, learned counsels for respondent-Corporation contended:
The applicants got employment as Driver in DTC by deceitful means, i.e., when they had been declared medically unfit by the DTC medical board, they got them declared fit from GNEC fraudulently, Once the special medical board (ibid) has found them unfit for the post of Driver, no fault can be found in laying them off the duty, Only such candidates, who were originally declared medically unfit by the DTC medical board and subsequently got themselves declared fit by the GNEC, are subjected to re-medical examination, thus there is no violation of Articles 14 and 16 of the Constitution of India, Present cases are not the cases where the applicants can be said to have acquired disability while being in service. In fact, they were found medically unfit by DTC medical board in recruitment process and subsequently got them declared fit from GNEC and when one Mr. Vinod Kumar caused an accident, as opined by the CMO/In-charge, they all were correctly subjected to fresh medical examination; and The colour blindness is not covered by the definition of provisions contained in Section 47 of Disability Act 1995, thus the respondent-Corporation would be terminating the services of the applicants only after following the rules. Show cause notices in this regard have already been issued to them.
9. Both the learned counsels for respondents relied upon the following judgments of this Tribunal, Honble High Courts and Honble Supreme Court:
Tribunal:
Shri Ranbir Singh v. Delhi Transport Corporation (O.A.No.2382/2010) decided on 31.1.2012, Honble High Courts Inder Setia v. Union of India & others (WP (C) No.9080/2011) decided on 7.2.2012, Union of India & others v. Suresh Kumar (WP (C) No.9443/2007) decided on 17.12.2007; and Hawa Singh v. Delhi Transport Corporation (WP (C) No.7880/2011) decided on 3.2.2012 Honble Supreme Court Rajasthan Pradesh Vaidya Samiti, Sardarshahar & another v. Union of India & others, (2010) 12 SCC 609; and Union of India v. Devendra Kumar Pant & others, (2009) 14 SCC 546
10. In view of the rival contentions put-forth by the parties, following issues arise to be determined by us:
Whether the respondent-Corporation is justified in laying the applicants off the duty?
Whether the colour blindness can be considered as disability?
Whether a DTC Driver declared colour blind cannot be entitled to be shifted to some other post in the same pay scale?
Whether even such employees, who suffered from disability at the time of initial appointment and disability is noticed after their joining the service, can claim alternate employment?
Whether the termination of services of the applicants is a question arises to be determined in the present Original Applications?
Whether in the facts and circumstances of present OAs the issue of promissory estoppel applies?
11. As far as the withdrawal of the duty from the applicants is concerned, it is not gainsaid that the duty of the Drivers in DTC involves public safety at large and an unfit Driver puts the safety of not only the passengers in the vehicle but also the other commuters on road at risk. As has been provided in the Circular No.PLD-V (Medical Std.)/86/6614 dated 2.7.1986 issued by the Chairman-cum-Managing Director, DTC, colour blindness is a disqualification in case of Drivers in the Corporation. The minimum vision standard (without glasses) for the post of Driver in the said Circular is 6/6 6/6. For easy reference, relevant excerpt of the said Circular reads as follows:-
Vision Standard minimum vision standard should be as under:
Driver 6/6 6/6 ) Without glasses J1 J/1 ) 6/6 6/6 ) With or without glasses J1 J1 ) Class IV (Excluding Chowkidar and R & M Staff) 6/12 6/12 with glasses 6/6 6/-- without glasses R&M Staff 6/12 6/12 without glasses 6/6 6/18 with or without glasses Class III Ministerial 6/12 6/12) with glasses Staff and 6/6 6/-- ) with or without glasses Tech.
Tech. Staff 6/12 6/12) with or without glasses 6/6 6/18) J1 J1 ) 5. Security Guard and Chowkidar 6/6 6/6 ) without glasses J/1 J/1 ) 6. Officers category Technical 6/6 6/12 with or without glasses 6/9 6/9 with glasses J/1 J/II Non-technical 6/9 6/12 ) with or without glasses 6/6 6/18 ) with glasses J/I J/II )
Note:- The eye-sight of the drivers will be checked up once in three years and whose eye-sight deteriorate will have to use the glasses.
Absence of one eye is a disqualification for officers category (both tech. and/or technical), Drivers, Conductors, S/Guards, Chowkidars and Class III (Tech) and Class IV technical staff. For other categories, absence of one eye is not a disqualification provided better eye vision is 6/6 without glasses.
Colour Vision: Colour blindness is a disqualification in case of Medical Officer, Conductors and Drivers. Thus when the specially constituted medical board comprising of three doctors from different Government hospitals (ibid) found the applicants as colour blind, they were rightly being laid off the duty.
12. As far as the issue of colour blindness to be considered as disability, in terms of Section 2 (i) of the Disability Act 1995 is concerned, disability means blindness, low vision, etc. For easy reference, sub clause (i) of clause (a) of Section 2 of the Disability Act 1995 reads as under:-
disability means-
blindness;
low vision;
leprosy-cured;
hearing impairment;
locomotor disability;
mental retardation;
mental illness
13. If we go by the definition of disability mentioned in the statute, definitely the colour blindness (DDV & DNV) (vision 6/6 6/12) is not generally a disability. In Devendra Kumar Pants case (supra), relied upon by learned counsel for respondent-Corporation, the Honble Supreme Court categorically viewed that where a colour perception is a required minimum standard for a particular post, a person not possessing it and denied appointment or promotion cannot be considered not as disabled, but unfit for the post. For easy reference, paragraphs 27, 33 and 37 of the said judgment are extracted hereinbelow:-
27. Section 2(u) defines a "person with low vision" as "a person with impairment of visual functioning even after treatment or standard refractive correction but who uses or is potentially capable of using vision for the planning or execution of a task with appropriate assistive device".
Lack of colour perception is neither blindness nor low vision and is therefore apparently not a disability under the Act. It is therefore, doubtful whether a person lacking colour perception can claim to be a person entitled to any benefit under the Act. Be that as it may. We will examine the issue assuming that respondent is a person with disability.
xx xx xx xx xx
33. When invoking or applying the provisions of the Act, it is necessary to keep in view that the intention of the Act is to give a helping hand to persons with disability so that they can lead a self-reliant life with dignity and freedom. But the intention of the Act is not to jeopardize the safety and security of the public, co-employees, or the employee himself or the safety and security of the equipments or assets of the employer nor to accept reduced standards of safety and efficiency merely because the employee suffers from a disability. In this case, office order No.4/1990 makes it clear that the minimum medical standards have been fixed taking into account the requirements in the medical manual with reference to interest of public safety, interest of the employee himself and fellow employees and in the interest of the administration.
xx xx xx xx xx
37. Prescription of a minimum medical standard for promotion should be considered as such, and should not be viewed as denial of a promotional opportunity to a person with disability. We may illustrate. When an advertisement for the post of a police inspector prescribes a minimum height or a minimum chest measurements or a minimum physical stamina, a person who lacks the same and therefore denied appointment, cannot contend that he is discriminated on the ground of physical disability. Firstly being short or very thin or lacking stamina is not a physical disability but a physical characteristic. Therefore in such a situation the question of applicability of the Act does not arise at all. If a person not having a colour perception is denied appointment to the post of a driver, he cannot complain that he is discriminated on the ground of his disability. Same would be the position where the colour perception is a required minimum standard for a particular post. A person not possessing it is not being denied appointment or promotion on the ground of disability. The denial is on the ground of non- fulfillment of a minimum required standard/qualification. Viewed accordingly, it will be seen that section 47(2) is not attracted at all.
14. In The Vanguard Fire and General Insurance Co., Ltd. Madras v. Fraser and Ross & another, AIR 1960 SC 971, followed by Honble High Court of Delhi in Suresh Kumars case (supra), it could be viewed that in finding out the meaning of a word in various Sections of the statute, ordinarily the same given to it in the definition clause need to be followed. Relevant excerpt of the said judgment, referred to in Suresh Kumars case, reads as under:
(ii) In The Vanguard Fire and General Insurance Co., Ltd. Madras v. Fraser and Ross and Anr. AIR 1960 SC 971 the Apex Court has held in Para-6 which reads as follows:-
6. The main basis of this contention is the definition of the word "insurer" in s. 2(9) of the Act. It is pointed out that definition begins with the words "insurer means" and is therefore exhaustive. It may be accepted that generally the word " insurer" has been defined for the purposes of the Act to mean a person or body corporate, etc., which is actually carrying on the business of insurance, i.e., the business of effecting contracts of insurance of whatever kind they might be. But s. 2 begins with the words " in this Act, unless there is anything repugnant in the subject or context " and then come the various definition clauses of which (9) is one. It is well settled that all statutory definitions or abbreviations must be read subject to the qualification variously expressed in the definition clauses which created them and it may be that even where the definition is exhaustive inasmuch as the word defined is said to mean a certain thing, it is possible for the word to have a somewhat different meaning in different sections of the Act depending upon the subject or the context. That is why all definitions in statutes generally begin with the qualifying words similar to the words used in the present case, namely, unless there is anything repugnant in the subject or context. Therefore in finding out the meaning of the word " insurer " in various sections of the Act, the meaning to be ordinarily given to it is that given in the definition clause. But this is not inflexible and there may be sections in the Act where the meaning may have to be departed from on account of the subject or context in which the word has been used and that will be giving effect to the opening sentence in the definition section, namely, unless there is anything repugnant in the subject or context. In view of this qualification, the court has not only to look at the words but also to look at the context, the collocation and the object of such words relating to such matter and interpret the meaning intended to be conveyed by the use of the words under the circumstances. Therefore, though ordinarily the word "insurer" as used in the Act would mean a person or body corporate actually carrying on the business of insurance it may be that in certain sections the word may have a somewhat different meaning.
15. Nevertheless in the case of G. Muthu v. Management of Tamil Nadu State Transport Corporation (Madurai) Ltd. rep. by its Managing Director, Madurai, (2006) 4 MLJ 1669 relied upon by the Honble High Court of Delhi in Suresh Kumars case (supra), as referred to paragraphs 5 and 6 of the judgment, the term disability used in Section 47 of Disability Act 1995 can draw support not only in respect of defined disability contained in Section 2 (i) of the Disability Act, but will also encompass such other disabilities, which would disable a person from performing to work on the post which he held immediately prior to acquisition of such disability and thereby entitle him to avail the benefits conferred under the provisions of law for having acquired such a disability. Paragraph 6 of the judgment rendered in Suresh Kumars case reads as under:
6. In G. Muthu (supra), the Madras High Court thus concluded that the term disability used in 47 can draw support not only in respect of defined disability contained in Section 2 (i) of the Disability Act, but will also encompass such other disabilities which would disable a person from performing to work which he held immediately prior to acquisition of such disability and thereby entitle him to avail the benefits conferred under the said provisions for having acquired such a disability. Even if we do not pitch the case to that high level and confine ourselves within the four corners of Section 2 (b) which defines blindness, the case of the respondent herein may get covered within that definition, if he fulfills the requisites of clause (ii) thereof. In these circumstances, it would be important to see the final directions given by the Tribunal in the judgment, which are contained in para 9 and are to the following effect:-
9. In that view of the matter, we are of the view that the ends of justice would be fully met, if a direction be issued to the respondents to get the applicant examined suitably for determining his visual acuity and on the basis of the report, the competent authority shall process the case of the applicant and consequential benefits be allowed, in case he is found fit under the rules and instructions. Order accordingly. This shall be done within two months from the date of receipt of a copy of this order.
16. In paragraph 9 of the said judgment, Honble High Court of Delhi viewed that if the respondent therein fulfills the parameters of Section 2 (b) of the Disability Act and was to be treated as blind, he was to be treated as a disabled person under the Act and was entitled to the benefit under Section 47 of the Act. However, in the case of Hawa Singh (supra), a Division Bench of the Honble High Court presided by his Lordship Honble Mr. Justice A.K. Sikri, the then Acting Chief Justice, who authored the judgment in Suresh Kumars case (supra), viewed that in the said case decided on 17.12.2007, not the interpretation of Section 47 of the Disability Act, but the blindness was commented upon and it was held to include colour blindness. Paragraph 7 of the judgment in Hawa Singhs case (supra) reads as under:-
7. We would be failing in our duty if we do not refer to the judgment of Division of this Court to which one of us (A.K.Sikri,J) was a Member. In that case, entitled Union of India and Ors. Vs. Suresh Kumar, (W.P.(C) 9443/2007 dated 17.12.2007) the aforesaid extracts from G. Muthu (supra) was referred to and relied upon. However, that was not on the interpretation of Section 47 of the Act but on the interpretation of blindness which is one of the disabilities mentioned in Section 2 (i) of the Disabilities Act. The blindness? was held to include colour blindness and in that context, the aforesaid judgment of the Madras High Court in G. Muthu (supra) was relied upon. Insofar as issue at hand is concerned, it is squarely covered by the Division Bench judgment of this Court in Airport Authority of India Vs. Kumar Bharat Prasad Narain Singh (LPA 1601/2005 decided on 14.12.2005) and since judgment of a Coordinate Bench is binding, we find no merit in this writ petition which is accordingly dismissed.
17. In Inder Setias case (supra) wherein the petitioner was declared unfit for recruitment/selection in the Flying Branch by the Air Force Central Medical Examination (AFCME), Appellate Medical Board and the Review Medical Board on account of having myopia beyond permissible limits, the Honble High Court of Delhi viewed that if the petitioner had obtained a favourable report from the civilian doctor, it could not be held that he was not myopic and the Court does not have to sit in appeal over the finding of the review medical board, nor can it overrule such finding. Paragraphs 23, 24, 26 and 27 of the said judgment read as under:-
23. In the facts and circumstances of the case, on the basis of the reports obtained by the petitioner from the civilian doctors, it cannot be held that the petitioner is not myopic. On account of the conflicting report between the civilian doctors and specialists of the respondents, a Review Medical Board was duly constituted, which was headed by some fairly senior ranking officials and in the circumstances, this Court does not have to sit in appeal over the findings of the review medical board, nor does it have to overrule the findings of the review medical board on the basis of the certificates obtained by the petitioner from the civilian eye specialists. The respondents have also averred in the reply to the show cause notice that the report obtained by the petitioner from the All Indian Institute of Medical Sciences reveals that he was examined by a senior resident of the Hospital and not by a faculty member. In Prashant Grewal (supra), relied on by the respondents, a Division Bench of this Court had held that the doctors who conducted the medical examination in the civilian hospitals, by virtue of the nature of their duties, would not have the requisite experience for making the assessment regarding fitness for the defense forces and the para-military forces. It was further held that the norms for fitness for the civil post and for the posts in the defense services are quite different, leading to a candidate ordinarily being eligible for appointment to the civil post, but inspite of this he may not be eligible according to the rigorous medical standards of the forces. In the case relied on by the respondents, the candidate was found to have Esophoria breaking into Esotropia. The candidate in the said case had also challenged the outcome of the review medical board conducted by the respondents which found him unfit for all three services on account of having Esophoria breaking into Esotropia. He too had relied on a certificate issued by a senior resident of the All India Institute of Medical Sciences. The Division Bench had, in the facts and circumstances, placed reliance on the explanation given by the Wing Commander, R.Mohanty, Joint Director, Medical Services who had contended that the condition with which the said candidate was suffering would have seriously impacted his ability to perceive fast moving objects and thus, the plea of the candidate that he is fit on the basis of the certificate of the civilian doctors was declined. In para 8 of the said judgment, the court had held as under:- 8. Wing Commander R.Mohanti, Joint Director Medical Services of the Air Headquarter is present in the Court. He has explained that the condition which the petitioner has been found would seriously impact the candidates vision and he would be unable to perceive false moving objects. This is certainly a material consideration so far as the fitness for all the three forces, i.e. the army, navy and air force, is concerned. In view of the opinion of the experts in the specialty concerned.
24. In exercise of its power of judicial review, this Court will not sit in appeal over the reports given by the civilian doctors and the reports of the initial medical board of the respondents and the appellate medical board. On account of the variance in the findings of the various doctors, a review medical board was constituted by the respondents, which has also opined that the petitioner has myopia. In the absence of any procedural irregularity in conducting the review medical board and the procedure explained by the experts who are present in the Court, this Court finds no reason to interfere with the findings of the review medical board on any of the grounds raised by the petitioner. This has also been explained that the extent of myopia found may vary from one test to another in a person on account of the various external and internal factors, though the variance may not be to such an extent as had been observed by the initial medical board and the appellate medical board. Despite the variance in the extent of myopia found in the petitioner, it cannot however, be over looked as the initial medical board, the appellate medical board and the review medical board have all found the petitioner to be myopic. It is on account of the extent of myopia being different, the petitioner was first held to be unfit for the Flying Branch and for enlistment in other branches of the Air Force. However, pursuant to the findings of the review medical board, the petitioner was issued the appointment letter for the 80 AEC/131 GDOC i.e. the Technical Course and the petitioner has also joined the same subsequently. Since the maximum limit of refractive error is different for enlistment in the different branches of the Air Force, the petitioners contention that since he is fit for 80 AEC/131 GDOC, he is also fit for F(P) including WSOs and has a medical category A1G1 cannot be accepted, nor can this Court give such declaration as has been sought by the petitioner seeking judicial review of his medical examination.
xx xx xx xx
26. The judgment relied by the petitioner is apparently distinguishable. It must be remembered that the ratio of any decision must be understood in the background of the facts of that case. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. It must be remembered that a decision is only an authority for what it actually decides. It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. The ratio of one case cannot be mechanically applied to another case without having regard to the fact situation and circumstances in two cases. The Supreme Court in Bharat Petroleum Corporation Ltd and Anr. v. N.R.Vairamani and Anr. (AIR 2004 SC 778) had held that a decision cannot be relied on without considering the factual situation. In the judgment the Supreme Court had observed:- " Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.
27. In the totality of the facts and circumstances, and for the foregoing reasons, this Court finds no grounds to interfere with the decision of the respondents declaring the petitioner to be fit for 80 AEC/131 GDOC, however, declaring him unfit for the Flying Branch F(P) including WSOs. The writ petition in the facts and circumstances is without any merit, and it is, therefore, dismissed.
18. Nevertheless in Om Parkashs case (supra), relied upon by learned counsel for applicants, Honble Punjab and Haryana High Court viewed that since the petitioner had worked as Motor Lorry Driver in CPWD for more than 25 years and had unblemished service record, he could be adjusted on available vacancies in some other categories. Nevertheless, in the said case, it is nowhere viewed that an employee found unfit for the post of Driver being colour blind should be given alternative appointment. The view taken by the Honble Punjab and Haryana High Court in the said case is in the facts of that case rather in the said case the plea of the petitioner of being subjected to medical test for colour vision was not accepted. Paragraph 3 of the judgment reads as under:-
3. On the basis of the aforementioned report, Mr. Bal, counsel for the petitioner, submitted that the petitioner be again medically examined from the P.G.I., Chandigarh. However, this Court vide order dated 20.3.2009, directed the Medical Superintendent, Government Medical College, Sector 32, Chandigarh, to conduct a colour vision test of the petitioner and send its report to this Court in a sealed cover. This Court had also directed that all the tests which are necessary as per rules for the post of Motor Lorry Driver, should be conducted. Pursuant thereto, the Medical Superintendent, Government Medical College and Hospital, Sector 32, Chandigarh has submitted the medical report conducted by the Medical Board, which runs as under:-
The Medical Board consisting of Dr. Atul Sachdev as Chairman and Dr. R.K. Bansal and Dr. Rohit Jindal as Members met on 9.4.2009 at 3.00 p.m. in the office of the Chairman. The members examined Mr. Om Parkash from the point of view of colour vision and found that he could not identify the Ishiharas colour plates. The facility for testing the colour vision on Lantern test is not available with Government Medical College and Hospital, Chandigarh, hence, it is not possible to test the colour vision on the lantern test. This facility is available in other institutes and can be got done from there.
As per the board and his testing of the colour vision on the Ishiharas colour places, he is totally colour blind Mr. Bal, counsel for the petitioner, contends that only Ishihra test was conducted on the petitioner and no lantern test was conducted, as this facility was not available with the Medical College, Sector 32, Chandigarh. He further submits that if lantern test would have been conducted, then it would have been clearly established that the petitioner has a fairly good eyesight and is fit for the post of Motor Lorry Driver.
19. In Subey Rams case (supra), it is nowhere defined that blindness includes colour blindness also. In the said case, the only view taken is that the DTC had a policy to offer equivalent or lower post, thus if the employee refuses to accept the lower post, his premature retirement should be effective under Clause 10 of the Delhi Road Transport Authority (Appointment of Service) Regulations, 1952.
20. It is stare decisis that the definition of a particular term need to be understood as described in the relevant statute, keeping in view the object and intention of the statute. A word given a particular meaning in one statute can be described and understood differently in another. In the present cases, if we go strictly by the definition of the blindness given in the Disability Act 1995, the colour blindness cannot be understood as blindness. Wherever the colour perception is essential for a particular post, the candidate lacking in the same has to be considered as unfit for the post. Nevertheless the issue of fitness / unfitness arises only when we consider the eligibility / suitability of a person for appointment either by way of direct recruitment or promotion only. When a person is already in service and is subsequently considered medically unfit to continue on the post held by him, the unfitness / deficiency / unsuitability is described as disability. The disability is descend of suitability. However, the description of a particular word / situation / definition given in an act by expression of different words cannot be attached any such importance, which may defeat the object / intent of legislation/ scheme / rule. Generally and literally, a person, who lacks certain colour perception (colour blindness), cannot be described as blind. If such general view colour blindness is considered as blindness, it would be counter-productive and person, who lacks certain colour perception (colour blindness), may be considered unsuitable for all such posts for which a blind person is considered unsuitable. However, when we interpret the term disability with reference to the provisions contained in Section 47 of the Disability Act 1995, we need to agree and follow the view taken by the Honble Madras High Court in G. Muthus case (supra) that A rigorous, literal and pedantic interpretation is not to be attributed to the definition of disease as appearing under the Rules. In fact, the disability of a person needs to be construed with reference to his suitability for the post occupied by him. In the facts of these present Original Applications, if we say that since the colour blindness is not a blindness and is only a disability, as mentioned in Section 2 (b) (i) of the Disability Act 1995, it will definitely lead to a conclusion that the applicants are not disabled for the post of Driver and if not disabled then are suitable for the post and cannot be declared unfit. Thus as and when a person is considered medically unfit for the post held by him, he needs to be necessarily considered disabled. Nevertheless, in the present case, the test would be whether the applicants acquired disability during their service or they were suffering from the same before entering into the service. Once it appears from the submissions put-forth by the learned counsel for applicants, even if the applicants are declared colour blind, they may be suitable for many other jobs and are not disabled, we need to address the issue. While doing so, we may again say that the disability would not mean that disability for all purposes and for all kinds of work but it means the disability for the post held before being declared unfit for the same. If we go by the capability of a person to discharge other functions, then persons with low vision and hearing impairment may also not be considered as disabled, as they may be suitable to discharge several other functions. In sum and substance, we need to understand the meaning of the term blindness with reference to Sections 33 and 47 of the Disability Act 1995. For the purpose of Section 33, the definition of the disability given in Section 2 (b) (i) of the Act needs to be understood strictly, literally and rigidly. While for the purpose of Section 47 of the Act, the same needs to be understood liberally. In other words, the disability for the purpose of Section 33 means (i) blindness or low vision, (ii) hearing impairment; and (iii) locomotor disability or cerebral palsy, while for the purpose of Section 47 of the Act, it would mean the unfitness of a person to discharge the function of the post held by him before being declared unfit for the same. When for the purpose of Section 2 (b) (i) of the Act, the expression blindness will not include colour blindness for the purpose of Section 47 of the Act, if the lack of colour perception of the person is disqualification for a post, he would be considered as disabled.
21. As far as the issues of entitlement of the DTC Drivers to be shifted to the other post in the same pay scale and the claim of those, who suffered from disability at the time of initial appointment, noticed after their joining the service are concerned, it would depend upon the fact whether they acquired disability while being in service or disability persisted at the time of appointment. If the disability is acquired while being in service, they will be definitely given alternate appointment but if it was there at the time of joining the service, they would not be entitled to benefit of Section 47 of the Disability Act 1995.
22. Mr. Anil Mittal, learned counsel for applicants emphasized that in terms of Circular dated 20.3.2006 the provisions of Section 47 of the Disability Act 1995 should be applied in all cases where an employee acquires disability being in service and declared unfit by the DTC medical board. According to him, in order to give benefit of Section 47 of the Act to a DTC employee, one need not to see that whether he acquired disability while in service or existed at the time of appointment and only requirement is that a person need to be declared unfit by the medical board. If such interpretation is accepted, the meaning of Section 47 of the Disability Act 1995 would be totally changed. Section 47 itself stipulates that no establishment shall dispense with the services of an employee, or reduce him in rank, if he acquires a disability during his service. There is no such provision in the Disability Act 1995 that the establishment would not dispense with the service of a person even when he suffered from disability at the time of joining service. In Section 47 (1) of the Act, it is provided that an employee, after acquiring disability if not suitable for the post he was holding could be shifted to some other post with the same pay scale and service benefits, thus one of the essential conditions for giving benefit of Section 47 of the Act to a disabled employee is that the disability should be acquired while in service. It is stare decisis that the meaning or expression needs to be understood with reference to its object and intent.
23. In Ajay Kumar Bhardwaj v. Delhi Transport Corporation & others (O.A.No.1167/2012) decided on 28.9.2012, relied upon by learned counsel for respondent-Corporation, authored by one of us (A.K. Bhardwaj, Judicial Member), while commenting upon the statutory interpretation, it could be viewed as under:-
8. From the heading of the Office Order No.201 dated 24.11.1954 itself it can be seen that the said order provide for procedure for disposal of cases in which DTC employees are prosecuted while on duty. In terms of the said order, while the legal defence will continue to be provided by the management in all cases upto the lower Court in accordance with the prevalent practice, in cases where drivers are challaned, on account of some defects or absence of some equipment in buses legal defence would be provided upto the appeal stage. In continuance of provisions of such assistance to the drivers contained in Para-2 of the said order, the DRTA dealt with the question of taking departmental action against an employee convicted by the Court. It is in this process only that in Para-4 of Office Order No. 201 dated 24.11.1954 it is suggested that the question of departmental action against an employee convicted by Court will be taken up only after the appeal has been decided by the appellate Court. The word employee used in para-4 in question need to be understood with reference to the term driver used in paragraphs preceding and following said para. It is a portion of Office Order No. 201 dated 24.11.1954 only which has been incorporated as Clause(d) in Para-10 of Executive Instructions on Procedure regarding Disciplinary action and appeal issued vide No. ADMI-3(18)/53 dated 05.08.1955. In Para-9(g) of said Executive Instructions it is provided that where the order of punishment is based on facts established before a criminal court, procedure laid down in Paras 1,3 & 5 of the said instructions may be departed from. In Para-10(a) also it is reiterated that no detailed procedure is required for taking disciplinary action against persons who are convicted by the Criminal Courts. Neither in Para-9(g) nor in Para-10(a) it is so indicated that the disciplinary action against a D.T.S. employee can be initiated only after outcome of the appeal preferred by him against his conviction or only after expiry of the period of 30 days i.e. the prescribed period of limitation for filing the appeal. It is settled principle of statutory interpretation that a Statute /Rule/ Regulation/Order/ Instructions or any other instrument need to be read as a whole and all part of a piece of legislation must be construed together so as to avoid inconsistency and conflicts between various provisions contained in it. To ascertain the meaning of a section, it is not permissible to omit any part of it and the entire section need to be read together and an attempt should be made to reconcile both the parts. All paragraphs of an order/instruction must be read as its integral part being interdependent. An attempt should be made in construing them to reconcile and to avoid repugnancy. No part of a piece of legislation statute should be construed in isolation for the reason that the intention of the law-maker is to be found not in one part of the statute or another but in the entire enactment and the intention can be best gathered by viewing a particular part of the statute not detached from its context in the statute but in connection with its whole context. In the circumstances, we do not agree with the plea of Mr. Mittal, learned counsel for applicants that even if the applicants did not acquire the disability while being in service and were unfit even at the time of appointment, they had to be given alternate appointment.
24. As far as the issue of promissory estoppel is concerned, the same only applies in such cases where a party / person makes some promises or statement of facts and the principle cannot be invoked against a rule of natural science, such as medical examination, etc. The mistaken outcome of medical examination cannot be completely ruled out. It was for this reason only that despite being declared medically unfit by the DTC medical board, the applicants were subjected to re-medical examination in GNEC. If the principle of promissory estoppel is applied to, the outcome of principle of natural science, such as medical examination, etc. would also apply against the applicants for the simple reason that initially they were declared unfit by the DTC medical board. Merely because the DTC medical board initially accepted the result of the medical examination conducted by the GNEC, they are not estopped from subjecting the applicants to another medical examination.
25. Though in these Original Applications the applicants have questioned the withdrawal of the job of Driver from them and no termination order has been passed, during the course of hearing, it was submitted by learned counsels for the parties jointly that the respondent-Corporation is in the process of terminating the services of the applicants. Rather the learned counsel for respondent also produced the notices issued to the applicants to show cause that why their services should not be terminated. Even if it is so, in view of Section 20 of Administrative Tribunals Act, 1985, we cannot interfere with the same. In the event the services of the applicants are terminated, they would have their remedy to take apposite course.
26. Since during the course of hearing learned counsel for applicants emphasized that the technology in GNEC was advance and the one adopted by the Special Medical Board and DTC medical board was outdated and the view taken by the doctors regarding fitness of the applicants in GNEC need to be accepted, we first summoned the doctor from DTC with Ishihara colour plates and asked him to test some of the applicants before the Court. In respect of three applicants we were satisfied that they were colour blind while in respect of one candidate one of us (Mr. A.K. Bhardwaj, Judicial Member) had a doubt. In the circumstances, we summoned Dr. B. Ghosh, Director of GNEC and asked him to submit his report regarding medical examination of the applicants conducted in the GNEC. He responded with promptness and presented a list of candidates medically examined in the GNEC regarding their suitability for the post of Driver in DTC. The list of 106 candidates submitted by Dr. Ghosh reads as under:-
Along with the said list, Dr. Ghosh also presented certain other documents, i.e., the opinion of the doctors.
27. In these cases not only an issue of livelihood of quite a large number of persons but also the question of public safety is involved. Had the applicants been disabled for the post of Driver, maybe being colour blind, on acquiring disability after joining the service, we could have no hesitation in asking the DTC to apply provisions contained in Section 47 of the Disability Act 1995 but in these Original Applications, the applicants were considered medically unfit for the post during the recruitment process. When the doctor from the DTC submitted that the colour blindness is by birth and cannot be incurred during the course of employment, Dr. Ghosh, Director, GNEC took a stand that a person may start lacking some colour perception even later also. Though, at this stage, we could dismiss the Original Applications as premature also but since the applicants had approached this Tribunal to seek an interim stay against their termination and this Tribunal entertained O.A. No.2295/2013 on 11.7.2013 when it came up for hearing afresh and as a result also, O.A.No.2550/2013 on 30.7.2013, and considering the fact that aforesaid two OAs involve the employment of large number of DTC, in the interest of justice, we dispose of the same with the following directions:
The DTC medical board or the board constituted in terms of the order dated 17.4.2013 would medically re-examine the applicants adopting the device followed by the GNEC and using its infrastructure, and also applying the Ishihara colour plates, for which the Director of the Centre will make all necessary arrangements, within two weeks from the date of receipt of copy of this order.
If the said Board (not to be interfered with by the staff of GNEC, except to the extent of making the infrastructure available) considers them fit for the post in question, they would be put back in service, In case the Board finds them again unfit for the post, the respondent-Corporation would be at liberty to complete the process initiated by them to deal with the applicants; and The applicants would submit their reply to show cause notices promptly and the present order would not stand in the way of the Corporation to pass final order. However, in the fitness of things the Corporation may have its own decision to pass final order after considering the report of the above medical examination.
No costs.
Let a copy of this order be placed in each case file.
( A.K. Bhardwaj ) ( Sudhir Kumar ) Member (J) Member (A) /sunil/