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2008 DIGILAW 3039 (MAD)

N. Suseela v. Dinabandhu, I. A. S. & Others

2008-08-21

P.R.SHIVAKUMAR

body2008
Judgment :- Heard both sides and perused the records. 2. The petitioner, a physically handicapped found with 60% disability even at the time of initial appointment, was appointed as Sanitary Supervisor on 31.08.2001 under the Kurichi III Grade Municipality, Podanur, Coimbatore District. Having served for about 6 years as such, the petitioner submitted a representation to the respondents that she should be provided with a suitable alternate job as the above said disability, according to her, proved to be a hindrance to the performance of her duties as Sanitary Supervisor. As the said representation dated 22.09.2007 was not favourably considered by the respondents, the petitioner approached this court by way of a writ petition in W.P.No.55 of 2008. A learned single jungle of this court, by order dated 05.02.2008, allowed the writ petition and directed the respondents to accommodate the petitioner in a suitable alternate post without affecting the salary drawn by her as on the date of the said order. The order also directed that the said process should be completed within four weeks from the date of receipt of a copy of the said order. 3. Complaining that the respondents have not complied with the above said direction, the petitioner has come forward with the present contempt petition praying that the respondents should be punished for their alleged act of contempt. Admittedly, the direction issued by this court was not complied with within the time granted by this court. However, the third respondent has submitted a counter affidavit on behalf of the respondents stating that, though not within the time granted by this court, the direction of this court has been complied with by providing an alternate job without any loss in the salary drawn by the petitioner as on the date of the order passed in the writ petition. The relevant plea of compliance are found in paragraph 4, 5, 6 and 9 of the counter affidavit. For proper appreciation, the said paragraphs are reproduced hereunder:- " 4. It is submitted that this Honble Court by order dated 05.02.2008 made in W.P.No.55/2008 was pleased to direct the respondents more particularly the 3rd respondent, to provide a suitable alternate post to the petitioner, befitting her disability, in the office itself without affecting the salary drawn by her as on date within 4 weeks from the date of receipt of a copy of the said order. The copy of the above said order was received by the office of the 3rd respondents on 29.02.2008. The time period of 4 weeks expired on 27.03.2008. I had joined duty with effect from 08.05.2008. 5. It is submitted that the petitioner was working as an NMR in the office of Kurichi III Grade Municipality. Her service was regularized as Sanitary Supervisor from 31.08.2001 onwards and she has brough into the time scale of pay of Rs.2650-65-3300-70-4000. The petitioner had than filed the above writ petition in W.P.No.55 of 2008 seeking a direction to the respondents to give her the post of Junior Assistant, since she is physically challenged, which writ petition was disposed off on the above terms. 6. It is submitted that as per the order of the Honble High Court, the Executive Officer of Kurichi III Grade Municipality, Coimbatore District, had been instructed by Commissioner of Municipal Administration vide letter in Na.Ka.No.24732/2008 S4, dated 15.07.2008 to allocate alternative job without affecting the salary which is being presently drawn by mrs.Suseela, Sanitary Supervisor. Accordingly the petitioner has been given the post of Record Clerk (Ministerial Staff) w.e.f. 09.07.2008 vide proceedings of the Executive Officer, Kurichin 3rd Grade Municipality in Roc.No.1304/08 A2, dated 09.07.08. .................. 9) It is submitted that the petitioner has been given the alternate post of Record Clerk as directed by the Honble High Court in the scale of pay of 2610-60-3159-65-3540 along with the personal pay of Rs.162/-per month. It was categorically stated that the difference amount, if any would be paid to the petitioner as personal pay (PP) on fixation of her pay. Thus, her present salary has not been affected as directed by this Honble Court." 4. The learned counsel for the petitioner pointed out the fact that the post of Record Clerk carries a lesser time scale of pay than the time scale of pay applicable to the Sanitary Supervisor and that hence the order passed by this court has not been fully complied with. 5. On the other hand, the learned Government Advocate representing the respondents would contend that there is no post carrying equal time scale of pay as that of Sanitary Supervisor and hence the petitioner had to be accommodated in the next lower post, namely Record Clerk. 5. On the other hand, the learned Government Advocate representing the respondents would contend that there is no post carrying equal time scale of pay as that of Sanitary Supervisor and hence the petitioner had to be accommodated in the next lower post, namely Record Clerk. It is the further submission of the learned Government Advocate that while accommodating the petitioner in the post of Record Clerk, care had been taken to see that no loss in salary is occasioned to the petitioner by providing a clause to the effect that the difference in the time scale of pay would be sanctioned as personal pay to the petitioner from time to time. 6. The next contention of the learned counsel for the petitioner is that the promotional avenues of the petitioner will be affected. The answer for the said contention is that, both the posts, namely Record Clerk and Sanitary Supervisor, are feeder categories to the promotional post of Junior Assistant and hence the promotional avenues of the petitioner shall not be affected. Moreover, it is also brought to the notice of this court that, though the petitioner is not entitled to rely on Section 47 of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, since the petitioner did not acquire any disability after entering into service by way of sheer indulgence and with a view to comply with the order of this court, she has been accommodated in the alternate post of Record Clerk with pay protection. It is also brought to the notice of this court that this court has directed to see that the salary drawn by the petitioner as on the date of the order of the writ petition should not be affected while accommodating her in the alternate post and no direction has been issued to ensure that the promotional prospects of the petitioner are not affected and that despite the same, the respondents have chosen to accommodate the petitioner in an alternate post which is also a feeder category for the common promotional post of Junior Assistant. 7. Under these circumstances, this court comes to the conclusion that the contention of the learned counsel for the petitioner that the order has not been complied with cannot be countenanced. This court comes to the conclusion that proper compliance has been made and the same has to be recorded. 7. Under these circumstances, this court comes to the conclusion that the contention of the learned counsel for the petitioner that the order has not been complied with cannot be countenanced. This court comes to the conclusion that proper compliance has been made and the same has to be recorded. For the delay caused in implementation of the order of this court, an unconditional apology has been tendered on behalf of the respondents in paragraph 2 of the counter affidavit. The same has got to be accepted. 8. In the result, the unconditional apology tendered for not complying with the order within the time granted by the court is accepted. Compliance is recorded and the contempt petition is closed.