Karnataka High Court
Shri Shekharappa S/O Gangappa Goudar vs The Divisional Contrller on 3 June, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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NC: 2024:KHC-D:7329
WP No. 103069 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 3RD DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
WRIT PETITION NO.103069/2024(S-KSRTC)
BETWEEN:
SHRI SHEKHARAPPA S/O. GANGAPPA GOUDAR,
(S. G. GOUDAR), AGED ABOUT 57 YEARS,
OCC: DRIVER CUM CONDUCTOR,
NWKRTC, HUNAGUND DEPOT,
BAGALKOTE DIVISION, DIST: BAGALKOTE - 587 101.
...PETITIONER
(BY SRI RAVI HEGDE, ADVOCATE)
AND:
1. THE DIVISIONAL CONTRLLER,
NWKRTC, BAGALKOTE DIVISION,
DIST: BAGALKOTE - 587 101.
2. THE CHIEF PERSONNEL MANAGER (CPM),
NWKRTC, CENTRAL OFFICE,
GOKUL ROAD, HUBBALLI,
DIST: DHARWAD - 580 030.
Digitally signed
by YASHAVANT
NARAYANKAR 3. THE DEPOT MANAGER,
Location: High NWKRTC, HUNAGUND DEPOT,
Court of
Karnataka BAGALKOTE DIVISION,
DIST: BAGALKOTE - 587 101.
...RESPONDENTS
(BY SRI S.C.BHUTI, ADVOCATE FOR R1)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
CONSTITUTION OF INDIA, PRAYING TO, ISSUE WRIT OF CERTIORARI
OR ANY OTHER WRIT OR ORDER QUASHING THE ENDORSEMENT
DATED. 8/05/2024, BEARING NO.
VA.KA.RA.SA/BHAVI/SIBBANDI/C6/1144/2024 VIDE ANNEXURE-G,
ISSUED BY THE RESPONDENT NO.1, AND CONSEQUENT UPON
QUASHING THE AFORESAID COMMUNICATION, ISSUE WRIT OF
MANDAMUS DIRECTING THE RESPONDENTS TO ASSIGN LIGHTER JOB
TO THE PETITIONER PERMANENTLY AS PER PROVISIONS OF THE
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NC: 2024:KHC-D:7329
WP No. 103069 of 2024
RIGHTS OF PERSONS WITH DISABILITIES ACT, 2016, WITH ALL
BENEFITS, BY FIXING OUTER LIMIT AND ETC.,
THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. This petition is by the petitioner seeking quashing of the order dated 08.05.2024 issued by the respondent No.1 as per Annexure-G and for direction to the respondents to assign lighter job to the petitioner permanently as per the provisions of the Rights of Persons with Disability Act, 2016 with all benefit by fixing an outer limit.
2. It is the case of the petitioner that, he joined the service of the respondent-Corporation as driver cum conductor during the year 2006. That on 23.02.2022, he sustained injuries due to which his hip and bone there, has been totally damaged. He was taken to Utkarsha Hospital at Muddebihal, where he underwent surgery on the injuries with insertion of rods and screws. That the petitioner noticed severe pain, as such, he was admitted to Sanjeevani Hospital at Bijapur, wherein, it was found that earlier surgery conducted on the petitioner was improper. As such, the -3- NC: 2024:KHC-D:7329 WP No. 103069 of 2024 petitioner underwent yet another surgery of removal of the equipment inserted and the entire process of re-fixing was done afresh. That on 10.07.2023, petitioner had submitted representation requesting the respondent-Corporation to allot him a lighter job in view of the locomotive disability sustained by him. That he had also submitted medical certificate issued by the Medical Board, Bagalkote.
3. The 1st respondent had issued an endorsement dated 21.10.2023 directing the petitioner to appear before the Central Office on 26.10.2023. On 24.11.2023, the 1st respondent had issued an Office Order providing lighter job to the petitioner for a period of six months. Immediately thereafter, he was directed to discharge original duty. On 08.05.2024, the 1st respondent issued another endorsement directing the petitioner to discharge original duties from 27.05.2024. On 18.05.2024, the petitioner had given another representation requesting to continue him on the lighter job in view of the disability sustained by him which was denied by the respondent-Authorities vide -4- NC: 2024:KHC-D:7329 WP No. 103069 of 2024 communication dated 27.05.204 constraining him to approach this Court.
4. Counsel for the petitioner reiterating the grounds urged in the petition submits that as per Annexure-E, the Medical Board has assessed the disability of the petitioner at 45% and has stated that reassessment of the disability is to be done after two years, i.e., only after 07.07.2025. Counsel for the petitioner referring to the same, submit that, when the Medical Board itself has recommended reassessment of the disability after 07.07.2025, the impugned endorsement issued at Annexure-G directing the petitioner to revert to the original post, on the premise that the alternate lighter job which was given to him on 28.11.2023 was for a period of six months, the same had expired, is unsustainable.
5. Learned counsel for the petitioner, referring to provisions of Section 20 of the Rights of Persons with Disability Act, 2016, and Rule 18 of the Rights of Persons with Disability Rules, 2017 submit that once a certificate for disability indicating period of validity is issued, the respondent-Authorities shall continue the employee in the -5- NC: 2024:KHC-D:7329 WP No. 103069 of 2024 same post or shall be kept in a supernumerary post until a suitable post is available or he attains the age of superannuation whichever is earlier.
6. Referring to the above, the counsel submits that in the instant case since the Medical Board has issued a certificate indicating his permanent disability and recommending the reassessment of disability after two years which would expire on 07.07.2025, the respondent- Authorities could not have directed the petitioner to come and resume the original post. Hence, he submits that the impugned endorsement and the order are unsustainable.
7. Per contra, learned counsel the respondent submits that though the Medical Board has issued a disability certificate which is valid up to 07.07.2025, the same would not prevent the respondent-Authorities from calling upon the petitioner to subject himself to undergo medical test. He submits that since an alternate lighter job was given to the petitioner only for a period of six months and the same having come to an end from 25.05.2024, the petitioner cannot be allowed to take advantage of the disability -6- NC: 2024:KHC-D:7329 WP No. 103069 of 2024 certificate issued by the Medical Board for a period of two years expiring on 07.07.2025, considering that petitioner is not entitled for such benefit unless he procures such certificate.
8. Heard and perused the records.
9. Section 20 of the Rights of Persons with Disability Act, 2016 mandates that no government establishment shall discriminate against any person with disability in any manner relating to employment. Second proviso to sub-Section (4) of Section 20 of the Act, 2016 provides that, if it was not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains age of superannuation whichever is earlier. In other words, once a disability certificate is issued, at least for the period of validity of such certificate, if a suitable post is not available, employer is required to keep such employee on a supernumerary post until a suitable post is available or he attains age of superannuation, whichever is earlier.
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NC: 2024:KHC-D:7329 WP No. 103069 of 2024
10. Clause (ii) of sub-Rule (3) of Rule 18 of the Rights of Persons with Disability Rules 2017 provides that the Medical Authority shall, after due examination, issue a certificate of disability indicating period of validity in cases where there is any chance of variation or time in degree of disability.
11. Viewed in the light of the aforesaid provisions of the Act of 2016 and the Rules of 2017, the Medical Certificate issued by the Medical Board in the instant case produced at Annexure-E recommends for reassessment of disability after two years i.e., the medical certificate issued would be valid up to 07.07.2025, the Medical Board is consisting of Orthopedic Surgeon and Member, Senior Specialist and Member, District Surgeon and Chairman, Medical Board, District Hospital, and this Medical Board has recommended reassessment of the disability would be done on and after 07.07.2025. In other words, the validity of the certificate is up to a period of two years.
12. In the light of the provisions and the Rules referred to hereinabove, respondent-Authorities are not -8- NC: 2024:KHC-D:7329 WP No. 103069 of 2024 justified in issuing the endorsement stating that since the petitioner was appointed in the alternate lighter job for a period of six months which is due to expire on 27.05.2024, he shall return to the original post without reference to provision of Section 20, Rule 18 and the Medical Board certificate produced at Annexure-E. The endorsement in question is without reference to the aforesaid provisions of law. As such, the same is unsustainable.
13. Petition is allowed.
14. The endorsement dated 08.05.2024 vide Annexure-G issued by respondent No.1 is set aside.
15. Consequently, respondent-Authorities shall assign the lighter job to the petitioner at least up to 07.07.2025, the validity of the period of certificate as provided under Section 20 read with Rule 18 of the Rules, noted hereinabove.
16. Needless to state that on the expiry of 07.07.2025, the respondent-Board, if so advised, may call upon the petitioner to obtain fresh disability certificate to -9- NC: 2024:KHC-D:7329 WP No. 103069 of 2024 consider if he could be continued with the lighter post or he should revert back to the original post.
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JUDGE KGK/CT-ASC List No.: 1 Sl No.: 28