IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 5TH APRIL 2011 / 15TH CHAITHRA 1933 WP(C).No. 10903 of 2011(K) -------------------------------------- PETITIONER: ------------------- P.NAGARAJAN, AVITTOM, PARASUVAKKAL.P.O, THIRUVANANTHAPURAM DISTRICT-695 508. (CONDUCTOR KERALA STATE ROAD TRANSPORT CORPORATION PARASALA UNIT). BY ADV. SRI.N.SASIDHARAN UNNITHAN RESPONDENTS: ----------------------- 1. KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY THE MANAGING DIRECTOE, TRANSPORT BHAVAN,FORT,THIRUVANANTHAPURAM-695023. 2. ASSISTANT TRANSPORT OFFICER, KERALA STATE ROAD TRANSPORT CORPORATION, PARASALA UNIT, THIRUVANANTHAPURAM DISTRICT- 695001. BY ADV.SHRI.V.V.NANDAGOPAL NAMBIAR, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.T.RAVIKUMAR, J. - - - - - - - - - - - - - - - - - - - - - - - W.P(C) No. 10903 of 2011 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of April, 2011 J U D G M E N T The petitioner is a permanent conductor under the Kerala State Road Transport Corporation (for short, 'the Corporation'). He entered the service of the Corporation in the year 1996. On 07.2.2007, the petitioner suffered Cerebra Vascular Accident with resultant weakness of right half of body. Later, in the light of Ext.P1 he was allowed light duty for a period of six months as per Ext.P3 and later, it was extended by another six months. Subsequently, in the light of Ext.P5 permanent disability certificate, he was again assigned light duty and it is being extended from time to time. Now, as per Ext.P6, it was held that he would not be assigned light duty beyond 13.4.2011. According to the petitioner, he has acquired 40% of the permanent physical disability during his service. Essentially, the contention of the petitioner is that he is entitled to alternative employment in the light of the provisions under section 47(1) of the Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act (for short `the Act'). Section 47 of the Act reads as follows:- W.P.(C) No. 10903 of 2011 -2- “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.” 2. As already noticed, the contention of the petitioner is that he acquired the disability to the tune of 40% during his service. He commenced his career as a conductor in the year 1996. He continued to discharge the said duty till 2007. To contend that he is having permanent physical disability of 40% and thereby entitled to get an alternative employment and service benefits in terms of the aforesaid W.P.(C) No. 10903 of 2011 -3- provisions the petitioner has produced Exts.P1 and P5 medical certificate. True that, as per Ext.P5 certificate, it was certified that the petitioner is having permanent physical disability of 40%. 3. In terms of the provisions of the Act, no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service. At the same time, it is to be noted that there is no case for the petitioner that the Corporation is taking steps to dispense with his service or to reduce his rank, on account of his acquisition of disability during the service. It is only the assertion of the petitioner that on acquiring the disability during the service he has become unsuitable for the post he was holding and, therefore, entitled to get shifted to some other post with the same pay scale and service benefits. It is to substantiate the said claim he has produced Ext.P5 medical certificate. No doubt, Ext.P5 would certify the percentage of permanent disability of the petitioner as 40%. Going by the provisions, it is for the competent authority to get it ascertained whether after acquiring the disability the petitioner is suitable for the post he was holding and, if only, the answer is in the negative the question of shifting the petitioner to some other post with the same pay scale and service benefits would arise. The petitioner has already produced Ext.P5 to fortify his stand. In case, the respondents got any doubt W.P.(C) No. 10903 of 2011 -4- regarding the genuineness or correctness of the medical opinion it would definitely be open to the competent authority to refer to a duly constituted Medical Board or to such medical authority to get the percentage of permanent disability, if any, ascertained for the purpose of ascertaining whether the claim of the petitioner for the benefit of alternative employment under the proviso to Section 47(1) of the Act merits consideration. 4. In such circumstances, I am of the considered view that it will only be appropriate for the respondents either to act in the light of Ext.P5 or to make the petitioner undergo the formalities required for the purpose of assessing the percentage of permanent physical disability, if any, to ascertain whether the petitioner is entitled to get the benefit of alternative employment under Section 47(1) of the Act. In that view of the matter, the respondents shall intimate the petitioner the formalities which he has to comply with for the purpose. This shall be done by the competent authority among the respondents within a period of three weeks from the date of receipt of a copy of the judgment. The right of the petitioner to get the benefits of the aforesaid provisions will depend upon the certification issued by the competent medical authority and the decision based on the same by the competent authority. However, taking note of Ext.P5, I am of the W.P.(C) No. 10903 of 2011 -5- view that the respondents shall continue to assign the petitioner light duty till a decision is taken in the matter, as aforesaid. It is made clear that this Court has not made any observation with respect to the merits of the contentions raised by the petitioner. The writ petition is disposed of accordingly. Sd/- C.T.RAVIKUMAR, JUDGE //TRUE COPY// P.A. TO JUDGE KRK