R. Rajeev v. Kerala State Road Transport Corporation

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 23RD DAY OF OCTOBER 2013/1ST KARTHIKA, 1935 WP(C).No. 25848 of 2013 (E) ---------------------------- PETITIONER : -------------------------- R.RAJEEV PUTHENPURAYIL , NEERAVIL, PERINADU PO KOLLAM DISTRICT 691 601 (DRIVER , KSRTC, KOLLAM DEPOT) BY ADV. SRI.N.SASIDHARAN UNNITHAN RESPONDENTS : ---------------------------- 1. KERALA STATE ROAD TRANSPORT CORPORATION REPRESENTEDM BY THE MANAGING DIRECTOR, KSRTC THIRUVANANTHAPURAM 695 023. ## 2. ASSISTANT TRANSPORT OFFICER KOLLAM DEPOT, KOLLAM DISTRICT 695 010. ## 3. MEDICAL OFFICER KSRTC MEDICAL CENTRE, TRANSPORT BHAVAN THIRUVANANTHAPURAM 695 023. R BY ADV.SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 25848 of 2013 (E) ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXHIBIT P1 COPY OF OUT PATIENT TICKET DATED 14/3/2011 ISSUED FROM THE DISTRICT HOSPITAL , KOLLAM. EXHIBIT P2 COPY OF THE DISCHARGE CARD DATED 24/3/2011 ISSUED FROM THE MEDCIAL COLLEGE , THIRUVANANTHAPURAM EXHIBIT P3 COPY OF THE DISCHARGE CARED DATED 7/7/2011 ISSUED FROM THE MEDICAL COLLEGE, THIRUVANANTHAPURAM EXHIBIT P4 COPY OF THE MEMO NO.EA 1/115/12/KLM DATED 12/1/2012 ISSUED TO THE PETITIONER EXHIBIT P5 COPY OF THE DISABILITY CERTIFICATE DATED 21/2/2012 ISSUED BY THE MEDICAL BOARD EXHIBIT P6 COPY OF JUDGMENT DATED 2/8/2012 IN WPC NO.18172/2012 OF THIS HONOURABLE COURT EXHIBIT P7 COPY OF THE LETTER DATED 18/4/2013 ISSUED BY DR.GOPAKUMAR EXHIBIT P8 COPY OF THE CERTIFICATE ISSUED BY THE STANDING MEDICAL BOARD EXHIBIT P9 COPY OF THE CERTIFICATE ISSUED BY THE STANDING MEDICAL BOARD DATED 31/5/2013 EXHIBIT P10 COPY OF JUDGMENT DATED 21/5/2013 IN WPC 12182/2013 OF THIS HONOURABLE COURT EXHIBIT P11 COPY OF THE REPRESENTATION DATED 6/6/2013 OF THE PETITIONER EXHIBIT P12 COPY OF THE MEMO NO. PL-14/028391/11 DATED 20/8/2013 OF THE IST RESPONDENT EXHIBIT P13 COPY OF THE REPRESENTATION DATED 5/10/2013 OF THE PETITIONER RESPONDENT(S)' EXHIBITS : NIL --------------------------------------- /TRUE COPY/ P.A TO JUDGE AV ## **C.K. ABDUL REHIM, J.** ## **------------------------------------** W.P.(C).No. 25848 of 2013 **-----------------------------------** Dated this the 23[rd ] day of October, 2013 ## **J U D G M E N T** The petitioner is a Driver in the service of the 1[st] respondent Corporation. The petitioner sustained serious injuries on 14.03.2011 due to fall from the roof of a shed. Even after continued treatment and repeated surgeries undergone, he suffered permanent disability due to limitation in ankle movements on his right leg. Based on the request made by the petitioner, he was assigned with light duty in the store section for a period of 3 months, as per Ext.P4. When continuation of duty in the store section was not permitted despite production of Ext.P5 disability certificate, the petitioner had approached this Court in W.P.(C)No.18172/2012. The said writ petition was disposed of through Ext.P6 judgment. It was submitted on behalf of the 1[st] respondent Corporation that if the petitioner appears before the Medical Board constituted by the Director of Health Services and if the Medical Board certifies that he has to be given light duty, the petitioner will be given appropriate posting in accordance with law. This Court observed that petitioner is a person with disability coming within the purview of the Persons with Disability (Equal Opportunities, Protection of Right and Full Participation) Act, 1995 (hereinafter “the Act” for short). In Ext.P6 judgment this Court W.P.(C).No. 25848 of 2013 2 recorded the submissions made on behalf of the 1[st] respondent Corporation. It was directed to permit the petitioner to continue in the light duty, till a decision is taken by the Corporation as conceded. It is evident from Exts.P7 and P8 that, the Standing Medical Board attached to the Director of Health Services reported that due to limitation of the ankle movements, it will be difficult for the petitioner to drive heavy vehicles. The petitioner had also obtained an assessment of disability from the Medical Board attached to the District Hospital, Kollam, as per Ext.P9. The extent of disability was assessed as 40%. Despite production of Exts.P7 to P9 no action was taken to permit continuance of the light duty as conceded in Ext.P6 judgment. Therefore, the petitioner again approached this Court in W.P.(C) No.12182/2013. This court permitted the petitioner to file a representation before the 1[st] respondent bringing to their notice about the medical reports. The representation if any submitted was directed to be considered and disposed of by the 1[st] respondent within a month. Till such decision is taken, the petitioner was permitted to continue in the light duty assigned. Ext.P11 is the copy of the representation submitted by the petitioner before the 1[st] respondent in compliance with the directions issued by this Court. But in Ext.P12 order the 1[st] W.P.(C).No. 25848 of 2013 3 respondent found that the petitioner cannot be given light duty and therefore he was directed to resume back to his original post of Driver. It is challenging Ext.P12 this writ petition is filed. 2. In Ext.P12 it is observed by the 1[st] respondent that there is no provision in the Corporation to grant light duty for a long period. It is mentioned that, if all the employees having 40% of disability have to be given protection under Section 47 of the Act, then KSRTC will be forced to put 20% of its operating staff on supernumerary posts. According to the 1[st] respondent such posting and arrangement will be detrimental to the interest of the Corporation. It is further observed that if a Driver is permitted to perform duty in a different post, it become impossible for the Corporation to report vacancies of the Driver post to KPSC and to get regular recruitment for such vacancies, because his lien as Driver will continue. However, by virtue of Ext.P12 the petitioner was permitted to continue in light duty up to 31.10.2013. In Ext.P12 the 1[st] respondent permitted the petitioner to opt for category change to the post of 'Pump Operator' in the existing vacancy as per the Rules of the Corporation, within the said extended period of time. 3. This Court is of the considered opinion that the stand taken by the 1[st] respondent is totally misconceived. In Ext.P6 this W.P.(C).No. 25848 of 2013 4 Court observed that, having sustained physical disability of 40%, the petitioner is a person with disability under the Act. Therefore, the 1[st] respondent ought to have considered the obligation under the Act, while deciding the issue. Section 47 of the Act prohibits dispensation of service of any employee who acquires disability during service. It provides that if an employee has become not suitable for the post he was holding, he could be shifted to some other post with the same pay scale and service benefits. It further provides that if it is not possible to adjust the employee against any posts available, he should be kept on supernumerary post, until a suitable post is available or until the employee attains superannuation. Sub Section (2) of Section 47 also provides that no promotion shall be denied to a person merely on the ground of disability. The 1[st] respondent Corporation has no case that Section 47 is not applicable to them, as an establishment exempted under the proviso to Sub Section (2) of Section 47. Therefore, the obligation is statutory and it is mandatory in nature. Once the Corporation is convinced that an employee cannot perform duty in the post in which he was serving due to acquisition of disability while in service, he should be posted appropriately, in compliance with Section 47. The reasoning mentioned in Ext.P12 is that, under the Scheme W.P.(C).No. 25848 of 2013 5 formulated by the Corporation change of category cannot be allowed on a permanent basis. It is also mentioned that if the petitioner is allowed to continue in the Driver category and to perform duty in a different post it will become impossible for the Corporation to report the vacancy of the Driver to the KPSC. But this Court is of the considered opinion that once the obligation under Section 47 is discharged there is no question of keeping the petitioner in the post of Driver. On the other hand, he will be shifted to another suitable post by protection of the pay and service benefits, or to a supernumerary post created, as the case may be. At any event, the post of Driver which was being officiated by the petitioner will fall vacant and there may not be any impediment in reporting the vacancy to KPSC. 4. The 1[st] respondent Corporation cannot depend upon the scheme formulated in order to escape from the statutory obligations contained in Section 47. This is especially because Section 72 of the Act provides that the Act or the Rules made thereunder shall be in addition to, and not in derogation of any other law for the time being in force. Hence it is clear that the mandatory nature of the obligation cast upon the 1[st] respondent Corporation cannot be refuted on the basis of provisions contained in any scheme formulated. W.P.(C).No. 25848 of 2013 6 5. A Division Bench of this Court in the decision in _**Abdul**_ ## _**Kalam v. Plantation Corporation of Kerala Ltd. [2011 (1)**_ _**KLT 86]**_ observed that, a stipulation made by the State that the appointment to any post can be made only through Public Service Commission, does not override the obligation created under Section 47, as it is a law made by the Parliament pursuant to the treaty obligation incurred by the country. Therefore by virtue of Article 253 of the Constitution of India, the Act will prevail on any law made by the State, is the finding. 6. Under the above mentioned circumstances, the reason mentioned in Ext.P12 cannot be sustained in the eye of law. It is for the 1[st] respondent Corporation to consider the extent of disability of the petitioner and to take a decision with respect to necessity for shifting the petitioner to any post other than the Driver by protecting his pay and service benefits or if no suitable post is available to keep him on a supernumerary post, in compliance with the mandate of Section 47 of the Act. 7. In the result, the writ petition is allowed and Ext.P12 is hereby quashed. The 1[st] respondent is directed to take a fresh decision taking note of the observations contained herein above, after affording opportunity of personal hearing to the petitioner. A final decision on the matter shall be taken at the earliest W.P.(C).No. 25848 of 2013 7 possible, at any rate within a period to two months from the date of receipt of a copy of this judgment. Till such decision is taken as directed above, the petitioner shall be permitted to continue in light duty which he is presently assigned with. Sd/- **C.K. ABDUL REHIM, JUDGE** AV