IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 6TH DECEMBER 2011 / 15TH AGRAHAYANA 1933 WP(C).No. 22179 of 2007(M) -------------------------- PETITIONER : --------------------- M.M.MAJEED, S/O.MOIDEEN, AGED 54 YEARS, DRIVER (NOW WORKING AS PEON), PRIMARY HEALTH CENTRE, VARANDRAPPALLY, THRISSUR DISTRICT. BY ADVS. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMIL WELFARE DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF HEALTH SERVICES, TRIVANDRUM. 3. THE DISTRICT MEDICAL OFFICER (HEALTH), THRISSUR DISTRICT. 4. THE MEDICAL OFFICER, PRIMARY HEALTH CENTRE, VARANDRAPPALLY, THRISSUR DISTRICT. R1 TO R4 BY GOVT. PLEADER SRI. NOBLE MATHEW THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 22179 of 2007(M) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE MEDICAL CERTIFICATE DATED 26-09-2005. EXT.P2 : COPY OF THE ORDER NO. A2-22115/05/DMOH OF THE DIST. MEDICAL OFFICER DATED 15-10-2005. EXT.P3 : COPY OF THE ORDER NO. HT7/29654/06/DHS OF THE 2ND RESPONDENT DATED 20-07-2006. EXT.P4 : COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C) NO. 9023/2006-Y DATED 28-07-2006. EXT.P5 : COPY OF THE G.O. (RT) NO. 3644/2006/H & FWD OF THE GOVERNMENT DATED 15-12-2006. EXT.P6 : COPY OF THE G.O. (RT) NO. 8072/06/FIN OF THE GOVERNMENT DATED 01-12-2006. EXT.P7 : COPY OF THE STANDING DISABILITY ASSESSMENT BOARD CERTIFICATE DATED 08-08-2007. RESPONDENT'S EXHIBITS : NIL //TRUE COPY// P.S. TO JUDGE Mn S.SIRI JAGAN, J. ================== W.P.(C).No. 22179 of 2007 ================== Dated this the 6th day of December, 2011 J U D G M E N T At the time of filing this writ petition, the petitioner was an employee of the Health and Family Welfare Department of the Government of Kerala. He subsequently retired from service. He was working as a Driver in the Health Service Department. While working so, in an accident, he suffered physical disability. By Ext.P7, the medical board certified that his disability is 60%. The petitioner submits that because of the disability, he was unable to drive vehicles and he was advised by the doctors, who treated him and the medical board not to drive vehicles. The petitioner, therefore, filed an application for category change as a Peon. The Government sought concurrence of the Public Service Commission for the category change. The Public Service Commission accepted the proposal of the Government. While so, the petitioner obtained Ext.P4 judgment in W.P. (C).No. 9023/2006 for consideration of the petitioner's request for category change. In the above circumstances, Ext.P5 order was passed allowing the request of the petitioner for category change as a Peon. But, since the post of Peon is in a lower category than Driver, in Ext.P5, it was made clear that it will be considered as a reversion. The petitioner challenges Ext.P5 order on the ground that by virtue of w.p.c.22179/07 - : 2 :- Section 47 of the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, the petitioner is entitled to be given adjustment in another post having the same scale of pay and service benefits or to be adjusted in a supernumerary post carrying the same scale of pay and service benefits. The petitioner contends that by Ext.P6, another employee, who was working as a Driver in the Finance Department was given category change as a Peon protecting the pay drawn by him while working as Driver. The petitioner, therefore, seeks the following reliefs: “(a) call for the records relating to Exhibits P5 to the extent it orders shifting of the Petitioner to the post amounting to reversion and quash the original of the same by the issue of a writ of certiorari or other appropriate writ or order. (b) issue a writ of mandamus or other appropriate writ, order or direction commanding the Respondents to shift the Petitioner to any other post with the same pay scale and same benefit of Driver or he may be against as a supernumerary post with the same service benefits. (c) issue a writ of mandamus or other appropriate writ order or direction commanding the Respondents to grant the pay and allowances to the Petitioner in the post in which he is accommodated as that of the Driver. (d) issue a writ of mandamus or other appropriate writ order or direction commanding the Respondents to grant the Pay and allowances to the Petitioner as Driver for the period he was kept out of service and also restore the leave compelled to avail during the said period.” 2. The learned Government Pleader, on the strength of a counter affidavit stated to be have been filed, argues that the petitioner is not entitled to the same scale of pay as that of a Driver insofar as it is as per the request of the petitioner he was given w.p.c.22179/07 - : 3 :- category change as a Peon. It is further submitted that Ext.P6 is not in a similar case insofar as, in that case, the medical board themselves had certified that the employee covered by Ext.P6 has lost eye sight by 35% and he cannot drive vehicles. He, therefore, submits that Ext.P6 is not in the case of a similar case as contended by the petitioner. 3. I have heard the learned Government Pleader also. 4. Section 47 of the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, reads thus: “47. Non discrimination in Government employment.- (1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service: Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could 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. (2) No promotion shall be denied to a person merely on the ground of his disability: 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, as may be specified in such notification, exempt any establishment from the provisions of this section.” In view of Section 47, it is the statutory duty of the Government to see that the petitioner is adjusted in either an equivalent post or in a supernumerary post with the same scale of pay and service benefits as w.p.c.22179/07 - : 4 :- that of a Driver. The fact that the petitioner requested for a category change as a Peon cannot in any way affect his right under Section 47. I do not agree with the contention of the learned Government Pleader that Ext.P6 is not in a similar case. Admittedly, by Ext.P6, a Driver who suffered an accident and lost 35% eye sight was given category change as a Peon with protection of pay. In Ext.P5, the first paragraph reads thus: “Shri.M.M.Majeed, is working as Driver, in the School of Nursing, Thrissur under Health Department since 1987. As he got illness at head and ear and is now undergoing treatment, Doctors advised him not to drive vehicles. Moreover, the Medical board, Thrissur also advised him to avoid driving.” The learned Government Pleader's contention is that in Ext.P6 the medical board had certified that the said employee cannot work as a Driver. But going by the above quoted paragraph of Ext.P5, the Government has accepted the fact that the petitioner cannot drive vehicles. That being so, the petitioner's case cannot be considered as anything different from the case of the employee covered by Ext.P6. Therefore, I have no doubt in my mind that the petitioner is also entitled to the same benefit as given to another employee as per Ext.P6. Accordingly, the writ petition is allowed. The respondents are directed to see that the petitioner's appointment as a Peon on category change is with protection of pay in the scale of pay of Driver. Consequently, the petitioner is entitled to arrears of pay based on the w.p.c.22179/07 - : 5 :- pay he was drawing in the scale of pay applicable to the post of Driver. Consequently, his retirement benefits shall also be re-fixed on the basis of that pay. Orders in this regard shall be passed and arrears of monetary benefits including arrears of pay and arrears of retirement benefits paid to the petitioner, as expeditiously as possible, at any rate, within three months from the date of receipt of a certified copy of this judgment. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge