BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21/08/2007 CORAM: THE HONOURABLE MR.JUSTICE P.K.MISRA and THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR WRIT APPEAL (MD) No.344 of 2007 and M.P.(MD).No.2 of 2007 1.The General Manager, Tamilnadu State Transport Corporation, Kumbakonam Division, Karaikudi Region. 2.The Managing Director, Tamilnadu State Transport Corporation, Kumbakonam Division, Karaikudi Region. ... Appellants vs. S.Selvaraj, S/o.Santhanam ... Respondent Writ Appeal under Clause 15 of Letters Patent against the order of the learned Single Judge dated 06.04.2006 made in W.P.No.5550 of 2005. !For Appellants ... Mr.Saravanan for Mr.K.Jayaraman ^For Respondent ... Mr.R.Saravanan :JUDGMENT
(Judgment of the Court was delivered by
P.R.SHIVAKUMAR,J)
This writ appeal is directed against the order dated 06.04.2006 in
W.P.No.5550 of 2005 whereby the appellants herein were directed to provide
alternative employment to the petitioner with continuity of service, pay
protection and all other attendant benefits.
2. The brief facts leading to the filing of the present writ appeal
can be stated thus:
(i) The respondent herein was appointed as a driver in the erstwhile
Pallavan Transport Corporation, Chennai through Employment Exchange by an order
dated 14.10.1991 after conducting driving skill test and after verification of
educational qualification and physical fitness. He was confirmed in the said
service on 24.08.1992. Thereafter, due to bifurcation of Pallavan Transport
Corporation, he was absorbed in the erstwhile Dr.Ambedhkar Transport
Corporation, Chennai. Subsequently on his request, he was transferred to Marudhu
Pandiyar Transport Corporation, Karaikudi at present, now renamed as Tamil Nadu
Transport Corporation, Kumbakonam, on 28.01.1995. While so, on 17.02.2003 he was
directed to undergo medical examination including eye test before the Medical
Board of Sivaganga. Accordingly, the Medical Board in its report dated
29.03.2003 had opined that the respondent/writ petitioner had colour vision
defect making him unsuitable for continuing in service as a driver. Based on the
said report of the Medical Board, after giving a show cause notice, the
respondent/writ petitioner was removed from service holding him unfit to
continue as a driver. Aggrieved by the said order of removal, whereas the actual
date of superannuation would fall on 29.02.2020, the respondent/writ petitioner
made several representations to the appellants seeking suitable alternative
employment. His representations were turned down at last on 18.06.2004. Hence,
the respondent/writ petitioner approached this Court by filing the above said
petition W.P.No.5550 of 2005 for the above said relief.
(ii) The said writ petition was resisted by the respondents therein
contending that providing alternative employment with continuity of service
would arise only in case of disability acquired during the course of employment
and the respondent/writ petitioner would not be entitled to such relief because
the defect was congenital. It was also averred in the counter-statement that
there was no vacancy to provide alternative employment to the writ petitioner
and whenever vacancy arose, alternative employment would be provided to the writ
petitioner.
(iii) The learned Single Judge, after hearing both sides, relying on
the judgment of the Supreme Court in Kunal Singh v. Union of India and another
reported in 2003(4) SCC 524, allowed the writ petition and issued a direction
against the appellants as stated above. Hence this writ appeal at the instance
of the appellants herein/respondents in the writ petition.
3. We have heard the submissions made by Mr.Saravanan, learned
counsel appearing for the appellants and by Mr.R.Saravanan, learned counsel
appearing for the respondent and paid our anxious considerations to the same. We
have also perused the records including the relevant rules and the judgment of
the learned Single Judge.
4. The learned counsel for the appellants has submitted that the
disability with which the respondent is now found is not the one acquired by
him in the middle of service but was found from birth as a congenital disorder
and therefore, he shall not be entitled to seek alternative employment.
5. Per contra, the learned counsel for the respondent would contend
that at the time of his entry into service as a driver, he was not found with
any such disorder and that even at the time of confirmation which was done after
getting medical opinion, the above said defect was not found and hence it should
be presumed that the disorder of defective colour vision was a disability
acquired in the middle of the service.
6. After paying our attention to the rival submissions made on
behalf of both parties, we are of the considered view that the above said
argument put forth on behalf of the appellants by the learned counsel has got to
be discountenanced. The learned Single Judge has assigned elaborate and valid
reasons for coming to the conclusion that the appellants had failed to
substantiate their contention that the disability was found from birth. We are
not in a position to disagree with the learned Single Judge in this regard. The
respondent was appointed as a temporary driver on 14.10.1991. Only after the
medical officer confirmed his physical fitness, his services were confirmed on
24.08.1992. Thereafter, for more than 10 years he was continuing in the service.
Only on 29.03.2003 he was found to suffer from colour vision defect by the
Medical Board, which was constituted at the request of the appellants. The
appellants have not produced any expert opinion to show that colour vision
defect could not be acquired in the middle of one’s life. From the fact that the
respondent was medically found fit and his services were confirmed in 1992
itself and 10 years thereafter, he was found to have colour vision defect, it is
obvious that there is substance and force in the submission made by the learned
counsel for the respondent that the deformity should have been acquired in the
middle of his service. Therefore, we do not agree with the contention of the
learned counsel for the appellants that the respondent herein shall not be
entitled to seek alternative employment based on the disability with which he is
now found.
7. The next contention raised on behalf of the appellants before the
learned Single Judge was that the respondent/writ petitioner had to produce an
independent disability certificate, apart from the report given by the Medical
Board to seek alternative employment. The said requirement, according to our
considered view, is not only superfluous but also aimed at protracting the claim
of the respondent/writ petitioner for getting suitable alternative employment.
The disability certified by the Board falls under Sub Clause u of Section 2 of
the “Persons with Disabilities (Equal Opportunities, Protection of Rights and
Full Participation) Act, 1995”. When the Medical Board itself has given a report
that the respondent/writ petitioner is found with a disability of defective
colour vision and based on the said report, the appellants have chosen to remove
him from service holding him unfit to continue in the post of driver, there is
no necessity to get a further certificate from an authorised medical officer.
8. In fact, the appellants themselves in their counter-statement
filed in the writ petition have not denied their liability to provide
alternative employment to the respondent/writ petitioner. Paragraph – 4 of the
counter-affidavit reads as follows:
“Regarding the averments in Para-5, it is submitted that, at this juncture
there is no vacancy to provide alternative employment to the writ petitioner.
Whenever the vacancy arises alternative employment will be provided to the writ
petitioner.”
What the appellants had stated before the learned Single Judge in the
counter-affidavit was that there was no vacancy at present to accommodate the
respondent/writ petitioner in an alternative employment and that whenever
vacancy arose, he would be accommodated in a suitable post in future. It is the
further contention of the appellants that the respondent/writ petitioner shall
be entitled to compensation alone as there is no vacancy to accommodate him. The
judgment of the Supreme Court relied on by the respondent/writ petitioner is an
answer to the contention of the learned counsel for the appellants that in case
of non-availability of suitable vacancy, the respondent/writ petitioner shall be
entitled to compensation alone. The Honourable Supreme Court, in the above said
case, has gone to the extent of stating that in case of non-availability of a
cadre post, a supernumerary post should be created for accommodating the
disabled workman till a suitable alternative post is found for him and that the
same should be done with continuity of service, pay protection and all other
attendant benefits. The said judgment of the Honourable Apex Court squarely
applies to the facts of the case on hand. Applying the said ratio laid down by
the Supreme Court, we do hereby express our opinion that the appellants have got
no merit in this appeal and the same deserves to be dismissed, confirming the
judgment of the learned Single Judge.
9. Accordingly, this writ appeal is dismissed. Consequently,
connected M.P.No.2 of 2007 is also dismissed. There shall be no order as to
costs.
gb/SML
To:
1.The General Manager,
Tamilnadu State Transport Corporation,
Kumbakonam Division,
Karaikudi Region.
2.The Managing Director,
Tamilnadu State Transport Corporation,
Kumbakonam Division,
Karaikudi Region.