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Allahabad High Court · body

2018 DIGILAW 974 (ALL)

SAMANT LAL OJHA v. STATE OF U. P.

2018-04-19

B.AMIT STHALEKAR

body2018
JUDGMENT Hon’ble B. Amit Sthalekar, J.—Rejoinder-affidavit filed today is taken on record. 2. Heard Sri Samir Sharma, learned counsel for the petitioner, Sri S.M. Mishra, learned counsel for the respondent Nos. 2 to 6 and the learned standing counsel for the respondent No. 1. 3. The petitioner in the writ petition is seeking a direction to the respondents to give him alternative duty and to pay him salary month to month. 4. Briefly stated the facts of the case are that the petitioner was appointed as Driver in the U.P. State Road Transport Corporation (UPSRTC) on 7.5.1988 and completed his satisfactory probationary period. Sometime in the year 2010 he developed eye problem and his vision deteriorated. A certificate was issued by the Chief Medical Officer, Allahabad on 20.10.2010 declaring the petitioner permanently unfit for driving duties. He was referred to the State Medical Board, Lucknow where he was medically examined in the Balrampur Hospital, Lucknow and was found unfit to drive vehicles. The petitioner got himself examined again in the Manohar Das Eye Hospital, Allahabad, Tej Bahadur Sapru Hospital, Moti Lal Nehru Mandaliya Chikitsalay, Allahabad, Swaroop Rani Nehru Hospital, Allahabad and Balrampur Hospital, Lucknow and in all the places he was declared unfit for driving. By a letter dated 15.1.2014, respondents also sent him for medical examination at the Chikitsa Prakoshtha, HQ, UPSRTC, Lucknow where he appeared for medical examination on 24.1.2014 and 10.3.2014 where again he was declared medically unfit for driving duty and a medical certificate was issued to that effect, copy of which has been filed as Annexure-5 to the writ petition. On 21.3.2014, the petitioner was served with a charge-sheet alleging that he was absent from duty in an unauthorised manner. 5. The petitioner was allowed to join duty on 12.6.2014 and again directed to report for a medical re-examination vide letter dated 17.9.2014 before the Zonal Medical Board, Allahabad with regard to the ailment of the petitioner and a specific query was made as to whether the disability is permanent, temporary or curable or whether he is permanently unfit for driving duty. Thereafter, the petitioner was relieved from duty. The petitioner remained under treatment in the Manohar Das Eye Hospital, Allahabad, Tej Bahadur Sapru Hospital, Moti Lal Nehru Mandaliya Chikitsalay, Allahabad, Swaroop Rani Nehru Hospital, Allahabad and Balrampur Hospital, Lucknow and during this period he was advised to stop driving. Thereafter, the petitioner was relieved from duty. The petitioner remained under treatment in the Manohar Das Eye Hospital, Allahabad, Tej Bahadur Sapru Hospital, Moti Lal Nehru Mandaliya Chikitsalay, Allahabad, Swaroop Rani Nehru Hospital, Allahabad and Balrampur Hospital, Lucknow and during this period he was advised to stop driving. Copy of the medical report has been filed as Annexure-7 to the writ petition. 6. The petitioner also reported before the Zonal Medical Board, Allahabad who again referred him to the Manohar Das Eye Hospital and Tej Bahadur Sapru Hospital, Allahabad and again a letter was issued on 18.2.2015, Annexure-8 to the writ petition, by the Zonal Medical Board, Allahabad addressed to the Regional Manager, UPSRTC declaring that the petitioner was found suffering from permanent disability and he was permanently unfit for driving duty. During this period, the respondents also stopped payment of salary to the petitioner. It is stated that the petitioner again referred to the State Medical Board on 26.3.2015 which referred him to the HOD, Ophthalmology Department, KGMU, Lucknow where he was asked to come in the following month. 7. When the respondents were not paying salary to the petitioner, he filed Writ petition No. 21601 of 2015 which was dismissed as having become infructuous by order dated 15.5.2015. During this period, the services of the petitioner were terminated by an order dated 14.5.2015 on the ground that he was unauthorisedly absent from duty since 17.12.2013. The petitioner then filed a departmental appeal which was rejected by the order dated 10.1.2013 against which he filed revision. When the revision was not being decided for considerable time, the revisional authority by his order dated 2.9.2016, Annexure-12 to the writ petition observed that the petitioner was declared medically unfit to drive by the Chikitsa Prakoshtha on 24.1.2014 and by the State Medical Board on 27.3.2014 and that the charge of remaining unauthorisedly absent from duty from 27.12.2013 to 1.3.2014 has not been proved. The revisional authority, accordingly, set aside the order of termination dated 15.5.2015 and the appellate order dated 4.1.2016 and directed that the petitioner be reinstated in service but did not grant him arrears of salary. 8. The revisional authority, accordingly, set aside the order of termination dated 15.5.2015 and the appellate order dated 4.1.2016 and directed that the petitioner be reinstated in service but did not grant him arrears of salary. 8. The learned counsel for the petitioner, Sri Samir Sharma submitted that in spite of the fact that the petitioner’s revision has been allowed and the order of termination and the appellate authority order have been set aside yet the respondents are insisting on taking work from the petitioner on the post of Driver. In para 31 of the writ petition, it has been averred that he submitted his joining before the respondent No. 5-Assistant Manager, Shahganj Depot on 21.3.2017 but the respondent No. 5 declined to grant alternative duty to the petitioner instead told him that unless he performed the duty of Driver he would not be allowed to join or be given any salary. In paragraph 36 of the writ petition, it is categorically alleged that on 21.3.2017, the petitioner was forced to give in writing that he was ready to drive bus and was deputed on Bus No. 4569 plying on Delhi-Azamgarh-Shahganj route. 9. A counter-affidavit has been filed on behalf of the respondents in which with regard to the averments of paragraph 31 and 32 of the writ petition, it is stated that the petitioner joined duty on 21.3.2017 and he was permitted to drive from Shahganj to Delhi road on his request. 10. This Court fails to understand as to why the petitioner would himself request to drive on a particular road from Shahganj to Delhi road since it is for the respondents, if they want him to drive to determine the route. It is also stated that the petitioner drove for some distance. This does not answer the question that when the petitioner was declared medically unfit by so many hospitals, by the Zonal Medical Board as well as the State Medical Board, how the work of driving is still being taken from him and how the respondents can insist on taking work of driving from the petitioner at the cost of serious risk to the life and property of people travelling on the road. It is equally surprising that the respondents are not accepting the medical certificates of the State Medical Board or by the Zonal Medical Board or of the various hospitals. It is equally surprising that the respondents are not accepting the medical certificates of the State Medical Board or by the Zonal Medical Board or of the various hospitals. This is an extremely serious matter and if any serious mishappening occurs, the respondents will be responsible for such incident and the responsibility for the same cannot be laid at the feet of the petitioner. Even otherwise, when the petitioner has been declared medically unfit for driving by the State Medical Board and by the Zonal Medical Board and the various hospital it was the duty of the department to have appointed him against an alternative post for which he is fit for work. If the petitioner is incapable of driving this does not mean that he is declared permanently incapable for all kinds of other work and, therefore, a duty is cast upon the respondents to consider the petitioner on some other post for which he may be found fit in view of the provisions of Section 20 (4) of the Rights of Persons with Disabilities Act, 2016. Section 20 of the Act read as under : 20. Non-discrimination in employment.—(1) No Government establishment shall discriminate against any person with disability in any matter relating to employment: Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, exempt any establishment from the provisions of this section. (2) Every Government establishment shall provide reasonable accommodation and appropriate barrier free and conducive environment to employees with disability. (3) No promotion shall be denied to a person merely on the ground of disability. (4) No Government establishment shall dispense with or reduce in rank, an employee who acquires a disability during his or her service: Provided that, if an employee after acquiring disability is not suitable for the post he was holding, shall be shifted to some other post with the same pay-scale and service benefits: Provided further that if it is 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 the age of superannuation, whichever is earlier. (5) The appropriate Government may frame policies for posting and transfer of employees with disabilities.” 11. (5) The appropriate Government may frame policies for posting and transfer of employees with disabilities.” 11. In Sub-Section (4) of Section 20 there is a clear stipulation that no Government establishment shall dispense with or reduce in rank, an employee who acquires a disability during his or her service provided that if an employee after acquiring disability is not suitable for the post he was holding, he shall be shifted to some other post with the same pay-scale and service benefits. The second proviso further stipulates that if it is 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 the age of superannuation, whichever is earlier. 12. Further in exercise of powers under Section 100 of the Act, 2016, Rules known as Rights of Persons with Disabilities Rules, 2017 have been framed. Rule 17, 18, 19 and 20 provides for issuance of certificate of disability and its validity. The Rules 17, 18, 19 and 20 read as under : “17. Application for certificate of disability.—(1) Any person with specified disability may apply in Form-IV for a certificate of disability and submit the application to— (a) a medical authority or any other notified competent authority to issue such a certificate in the district of residence of the applicant as mentioned in the proof of residence in the application; or (b) the concerned medical authority in a Government hospital where he may be undergoing or may have undergone treatment in connection with his disability; Provided that where a person with disability is a minor or suffering from intellectual disability or any other disability which renders him unfit or unable to make such an application himself, the application on his behalf may be made by his legal guardian or by any organisation registered under the Act having the minor under its care. (2) The application shall be accompanied by- (a) proof of residence; (b) two recent passport sZe photographs; and (c) aadhaar number or aadhaar enrollment number, if any. Note.—No other proof of residence shall be demanded from the applicant who has aadhaar or aadhaar enrollment number. 18. (2) The application shall be accompanied by- (a) proof of residence; (b) two recent passport sZe photographs; and (c) aadhaar number or aadhaar enrollment number, if any. Note.—No other proof of residence shall be demanded from the applicant who has aadhaar or aadhaar enrollment number. 18. Issue of certificate of disability.—(1) On receipt of an application under rule 17, the medical authority or any other notified competent authority shall, verify the information as provided by the applicant and shall assess the disability in terms of the relevant guidelines issued by the Central Government and after satisfying himself that the applicant is a person with disability, issue a certificate of disability in his favour in Form V, VI and VII, as the case may be. (2) The medical authority shall issue the certificate of disability within a month from the date of receipt of the application. (3) The medical authority shall, after due examination- (i) issue a permanent certificate of disability in cases where there are no chances of variation of disability over time in the degree of disability; or (ii) issue a certificate of disability indicating the period of validity, in cases where there is any chance of variation over time in the degree of disability. (4) If an applicant is found ineligible for issue of certificate of disability, the medical authority shall convey the reasons to him in writing under Form VIII within a period of one month from the date of receipt of the application. (5) The State Government and the Union territory Administration shall ensure that the certificate of disability is granted on online platform from such date as may be notified by the Central Government. 19. Certificate issued under rule 18 to be generally valid for all purposes.—A person to whom the certificate issued under rule 18 shall be entitled to apply for facilities, concessions and benefits admissible for persons with disabilities under schemes of the Government and of non-Governmental organZations funded by the Government. 20. Validity of certificate of disability issued under the repealed Act.—The certificate of disability issued under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1 of 1996) shall continue to be valid after commencement of the Act for the period specified therein. 13. 20. Validity of certificate of disability issued under the repealed Act.—The certificate of disability issued under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1 of 1996) shall continue to be valid after commencement of the Act for the period specified therein. 13. Thus, on the facts of the case and in view of the provisions of Section 20 of the Act, 2016 and the Rules framed therein, there is a mandate cast upon the respondents to consider the petitioner for alternative post of equal pay-scale against which he can be adjusted. 14. This writ petition is, therefore, allowed, and a mandamus is issued to the respondent No. 4-Regional Manager, UPSRTC, Azamgarh to consider the claim of the petitioner for an alternative post carrying equal pay-scale where he can be adjusted. This exercise shall be completed by the respondent No. 4 within a period of three months from the date of receipt of a certified copy of this order in his office. 15. Considering the fact that the petitioner had joined his duties on 21.3.2017 he shall also be entitled to salary treating him to be on a supernumerary post till an alternative post is found for him as per the directions already given by the respondent No. 4.