CWP No.16764 of 1995 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH. Civil Writ Petition No.16764 of 1995 (O&M) Date of decision : 13.7.2011 Rawat Singh ...Petitioner Versus The State of Haryana & others ...Respondents CORAM: HON'BLE MR. JUSTICE RAJAN GUPTA Present: Mr. R.S. Sangwan, Advocate for the petitioner. Mr. Rajesh Garg, Addl. Advocate General, Haryana Rajan Gupta, J. (oral) The petitioner has preferred the instant writ petition under Article 226/227 of the Constitution of India praying for a writ in the nature of certiorari quashing order dated 25th January, 1995, whereby the petitioner was compulsorily retired from service on medical grounds without giving him alternative employment. Brief factual matrix of the case is that the petitioner, who was serving in the Army for five years, was employed as a driver by the State of Haryana in the Haryana Roadways on 13th April, 1974. In the year 1990, the petitioner met with a serious accident while he was driving the bus belonging to Haryana Roadways. On 19.12.1990, he was referred to Civil Surgeon, Bhiwani for conducting his medical examination. A report was received from the office of Civil Surgeon that petitioner was not fit to drive heavy vehicle and could only perform light duty. Vide order dated 30th December, 1991 (Annexure P-2), the CWP No.16764 of 1995 2 petitioner was immediately asked to work against the post of Yard Master, same being light duty. It was also directed that the order will remain in operation till 31st January, 1992, whereafter the case would be considered. Vide another letter dated 24.11.1994, the petitioner was again referred to the Civil Surgeon, Bhiwani for medical examination. A medical report, Annexure P-4 was received by the respondents which was to the following effect:- “There is Osteoarthisis changes in left knee joint, with decrease in space of joint. There are multiple loose bodies in left knee joint.” It was, thus, opined that petitioner was not fit to drive a heavy vehicle. On 25th January, 1995, order Annexure P-6 was passed by the General Manager, Haryana Roadways, Charkhi Dadri stating that since no suitable alternative job was available to accommodate the petitioner, additional compensation as well as other retiral benefits were to be paid to him. With this observation, the petitioner was compulsorily retired. Aggrieved, the petitioner has preferred the instant writ petition before this court. Learned counsel for the petitioner at the outset submits that he is not pressing the prayer for alternative employment to dependent of the petitioner. Only claim raised by him is that the petitioner should have been adjusted against an alternative post with light duty. Learned counsel has emphasized that a post of Yard Master was available at the relevant time and petitioner should have been allowed to continue CWP No.16764 of 1995 3 against the same. Learned counsel further submits that apart from said post, there are other certain posts available in Haryana Roadways where the petitioner could have been adjusted. He has placed reliance on judgment rendered in Kunal Singh Vs. Union of India and another, 2003 (2) RSJ 199 and Makhan Singh Vs. State of Punjab and others, 2006 (3) RSJ 784 to contend that in view of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, the petitioner was entitled to alternative appointment. Mr. Garg, learned Additional Advocate General, Haryana representing the respondents has, however, opposed the prayer made. He submits that at the relevant time, no alternative post was available, against which petitioner could have been adjusted. He has referred to instructions dated 20.8.1992, Annexure P-7 and submits that in case alternative job is not available, an employee can be retired after giving him compensation for his remaining service. The petitioner was, thus, given compensation amounting to Rs.13,708.80 P. Learned counsel has further pointed out that petitioner was given all the benefits otherwise admissible to him on retirement. He submits that petitioner in fact expired during the pendency of this petition and same is being pressed by his legal representatives. As regards, judgments in Kunal Singh's and Makhan Singh's cases (supra), learned State counsel submits that same are not applicable to the facts of the instant case in view of compensation granted to the petitioner in terms of instructions, CWP No.16764 of 1995 4 Annexure P-7. He further submits that the compensation was accepted by the petitioner and no objection was raised by him at that time. I have heard learned counsel for the parties. It is evident that petitioner was compulsorily retired vide order, Annexure P-6. The operative part of the order reads thus: “The Transport Commissioner, Haryana Chandigarh has issued detailed instructions vide memo No.4392-4410 dated 20.8.92 in view of the judgment of the Hon'ble Supreme Court reported as 1991 PABIC page 494 in the case of CA No.1859-63 dated 20.12.90 Anand Bihari and others appellant versus Rajasthan State Transport Corporation Jaipur and other etc respondents where in policy has been laid down to deal with the case of drivers declared medically unfit the retirement if the bus drivers on medical grounds has been held up by the Division Bench of Punjab and Haryana High Court presided by the Hon'ble Justice M.S. Liberhan vide order dated 9.12.92 in CWP No.12446 of 1992 Mani Lal driver versus State of Haryana and others, Shri Rawat Singh driver No.3 is hereby retired from Govt. Service w.e.f. 6.12.94 A.N. under rule 5.18 of the CSR Vol I Part II in public interest. Certified that no suitable alternative job is available to accommodate Shri Rawat Singh driver No.3 as per decision of the court and instructions above, additional compensation is worked out and will be paid shortly. This will be in addition to other retiring benefits admissible under the rules. He is also directed to produce the clearance certificate immediately.” The aforesaid order was passed after report Annexure P-4 was received from the Civil Surgeon, according to which there was osteoarthisis changes in left knee joint, with decrease in space of joints. There were multiple loose bodies in left knee joint of the petitioner. CWP No.16764 of 1995 5 Considering the report, it was considered appropriate by the authority that petitioner should not be allowed to work on the post of a driver, which involves the duty of driving a heavy vehicle. Resultantly, it was decided to retire him compulsorily on medical grounds. All the retiral benefits admissible under the rules were, however, granted. Additionally, compensation for the remaining service was worked out and paid to the petitioner. The assertion of learned counsel that at the relevant time, alternative post involving lighter duty was available, has been denied by the State. While referring to para 8 of the reply, learned State counsel has submitted that only two posts of Yard Master were available at the relevant time and not three. Other posts referred to para 9 of the replication, according to State counsel, had to be filled according to the rules and policy of recruitment. It, thus, appears that in view of the constraint that no post of Yard Master, against which the petitioner was temporarily adjusted, was available, it was thought fit by the State to grant him compensation for the remaining service. In the facts and circumstances, judgments in Kunal Singh and Makhan Singh's case (supra) are not applicable to the present case. Thus, there is no scope for interference in writ jurisdiction of this court. The petition is devoid of merit and is hereby dismissed. (RAJAN GUPTA) JUDGE July 13, 2011 'rajpal' To be referred to the Reporters or not: Yes / No