LPA No.1214/2007 Page 1 of 34 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Reserved on : 11.12.2008 Date of decision: 09.01.2009 + LPA 1214/2007 DELHI TRANSPORT CORPORATION …Appellant Through: Mr. J.S.Bhasin, Advocate Versus SHRI DHARAM PAL (EX. DRIVER) ...Respondent Through: Nemo + LPA 121/2007 DELHI TRANSPORT CORPORATION …Appellant Through: Mr. Sumeet Pushkarna, Advocate Versus NIRMAL SINGH ...Respondent Through: Mr.N.A.Sebastian, Advocate + WP(C) 12265/2004 SH. YASHBIR SINGH …Petitioner Through: Mr. Raman Kapur, Advocate Versus DELHI TRANSPORT CORPORATION ... Respondent Through: Mr., J.S.Bhasin, Advocate + WP(C) 13885/2006 BALWAN SINGH …Petitioner Through: Mr. Anil Mittal, Advocate Versus DELHI TRANSPORT CORPORATION. ... Respondent Through: Mr. Sumeet Pushkarna, Advocate + WP(C) 6803/2006 RAM PHAL …Petitioner Through: Mr. Anil Mittal, Advocate Versus LPA 1214/2007 Page 2 of 34 DELHI TRANSPORT CORPORATION. ...Respondents Through: Nemo + LPA 1251/2007 TRILOCHAN SINGH AUJLA …Appellant Through: Ms. Rasmeet K. Charya, Advocate Versus DELHI TRANSPORT CORPORATION ...Respondent Through: Mr.J.S.Bhasin, Advocate + LPA 2123/2006 DALEL SINGH …Appellant Through: Mr.K.K.Patel, Advocate Versus DELHI TRANSPORT CORPORATION ...Respondent Through: Mr.J.S.Bhasin, Advocate CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON’BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes MOOL CHAND GARG, J. 1. This Judgment shall dispose of all the aforesaid matters which raises the following Common questions for our consideration:- i) Whether Section 47 of the „Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 (hereinafter referred to as „the Disabilities Act)‟ also mandates that the LPA No.1214/2007 Page 3 of 34 drivers (hereinafter referred to as „workmen/drivers‟) working in Delhi Transport Corporation (hereinafter referred to as „the management‟) be retained in service till the age of sixty years even after they reached the age of their superannuation which is 55 years as provided for vide Regulation 10 of DRTA(Conditions for Appointment of Service) Regulations 1952, (hereinafter referred to as „the Regulations‟) and were not found fit to by a medical board to act as a driver after that age. ii) Whether office order No. 99 dated 04.10.1963 and the circular dated 30.6.98, issued by the management by virtue of Section 4(e) of Delhi Road Transport Laws (Amendment) Act, 1971 providing for the extension of the service of the drivers beyond 55 years of age on year to year basis subject to their medical fitness up to 60 years is discriminatory in view of the age of superannuation of other employees who retires at 60 years. iii) Whether the workmen/drivers who retired prematurely from services of the management from the post of driver on having incurred physical disability before reaching the age of superannuation at 55 years, but retained in service till that age, on account of the benefits made available to them by Section 47 of the Disability Act by assigning them either a lower post or otherwise with the pay and allowances as admissible to a driver are also entitled to superannuate at the age of 60 years as a matter of right despite being un fit to act as a driver after the age of superannuation by claiming parity with other employees of the Corporation who retires at 60 years. 2. It is an undisputed fact that all the workmen who are, either the petitioners/appellants or respondents in all these matters had LPA 1214/2007 Page 4 of 34 been working as a bus driver under the management before their superannuation from service. They all incurred physical disability for various reasons before reaching the age of 55 years, which is the age of superannuation for a driver as per their service regulations, and were retained in service either in a lower post or otherwise but in the same pay scales after coming in to force of the Disability Act extending such benefits to the disabled Government Servants in accordance with the provisions contained under Section 47 of the said Act. However their further extension after 55 years was not recommended by a medical board, constituted by the management which was essential for their further extension in service on year to year basis up to the age of sixty years in accordance with the office order 99/63 read with circular dated 30.6.98 issued by the management. 3. It would be appropriate to take note of the office order No.99/63 dated 04.10.1963 issued by the management governing service conditions of the workers including the drivers working in erstwhile Delhi Transport Undertaking(DTU) than a part of MCD now taken over by Delhi Transport Corporation, the management which reads as under:- In accordance with the provisions of Regulation 10 of the DRTA (Conditions of Appointment & Service) Regulations, 1952 is framed by the erstwhile DRTA which are still in force in term of Section 516(2)(a) of the D.M.C. Act, the employees of this Undertaking are to retire on attaining the age of 55 years provided their LPA No.1214/2007 Page 5 of 34 services are not otherwise terminated earlier. The Municipal Corporation of Delhi, vide resolution No. 450 of its meeting held on 05.09.1963 has raised the age of superannuation from 55 years to 58 years in respect of the employees of the Undertaking subject to the following terms and conditions. (a) The decision shall take effect from 05.09.63 i.e. the date on which the Corporation has taken the decision. (b) Those who have already retired before this date or those who are on refused leave on 05.09.63 beyond the date of their normal retirement after attaning the age of 55 years shall not be entitled to resume duty. However, those who, on the effective date, are on refused leave beyond the date of normal retirement may be re- employed if found fit at the discretion of the appointing authority. No employee or officer shall, however, claim it as a right to be so re- employed (c) Those who had previously retired according to the normal rules and have subsequently been re-employed shall not be entitled to this benefit. (d) Persons on extension or service on the date from which the decision would be effective will be allowed to continue in service up to the age of 58 years. (e) Notwithstanding the conditions stipulated above and the decision to extend the age of superannuation from 55 to 58 years, the appointing authority may require an officer or an employee of the DTU to retire after he attains the age of 55 years after giving three months‟ notice without assigning any reason. The officers and employees shall also have the option of retiring after giving three months‟ notice to the appointing authority after attaining the age of 55 years. LPA 1214/2007 Page 6 of 34 (f) The drivers of the DTU shall get the benefit of the enhanced retirement age subject to the being found fit in every respect after thorough medical examination by the Medical Officer/Officers of the DTU every year after they have attained the age of 55 years. The first examination shall be carried out immediately after or before they have attained the age of 55 years. If as a result of such medical examination, they are found unfit for further service, they would be retired from the services of the Undertaking without any notice. 4. The aforesaid office order initially provided for retirement age of all employees of the Corporation as 55 years later extended up to 58 years while that of the drivers was kept at 55 years extendable on year to year basis subject to their medical fitness. The benefit of extension was made applicable even up to 60 years on the basis of their medical fitness vide circular date 30.6.98 which reads as under: DATED 30.06.1998 SUB: AMENDMENT IN FUNDAMENTAL RULE 56 REGARDING INCREASE IN THE RETIREMENT AGE OF GOVERNMENT SERVICE FROM SERVICE FROM 58 YEARS TO 60 YEARS In accordance with the DTC Board‟s resolution NO. 84/98, item 56/98 dated 26-6-1998, the Board after detailed discussion resolved that the age of retirement on superannuation of the employees of DTC should be enhanced from 58 years to 60 years w.e.f. 27-5.1998, the date from which the Govt. of NCT of Delhi had issued circular No. F-2/64/98/S-I dated 27-5-1998. In regard to the employees who have already been retired from the services of this Corporation w.e.f. 31-5-1998, be called for duty but no wages should be paid for the intervening period w.e.f. 1-6- 1998 to the date of their joining again DTC. However, other service benefits as per rules shall LPA No.1214/2007 Page 7 of 34 be admissible to them The Board further resolved that the drivers of the DTC shall get the benefit of enhanced retirement age subject to their being found fit in every respect after a thorough medical examination by the Medical Officer of the DTC every year after they have attained the age of 55 years. The first examination shall be carried out immediately after or before they have attained the age of 55 years. If as a result of such medical examination they are found unfit for further service, they would be retired from the service of the Corporation without any notice. The other conditions of the Central Govt. Notification dated 13-5-1998 will remain the same (copy enclosed) 5. Thus it is the mandate of the office order 99/63 and the circular dated 30.6.98, issued by the management by virtue of Section 4(e) of Delhi Road Transport Laws (Amendment) Act 1971 in accordance with regulation 10 aforesaid that the retiring age of the drivers of the management is 55 year. However they may be retained in service further up to 60 years subject to their medical fitness, to be certified by a medical board of the Management, to work as a driver on year to year basis on account of shortage of drivers with the management. 6. However the workmen/drivers who are the petitioners in CWPs No. 12265/2004, 13885/2006, 6803/2006 which petitions were transferred to this Court by a ld. Single Judge, claimed retention in service up to 60 years as a matter of right in view of the enforcement of the Disability Act which came into force since 07.02.1996. According to them the benefit provided for under Section 47 of the aforesaid Act enhances their age of retirement LPA 1214/2007 Page 8 of 34 at 60 despite their physical disability to act as the drivers. They have also relied upon the two Judgments delivered by two different Single Judges of this Court in CWP 8159/2005(Dharam Pal) and CWP No 15309/2006 (Nirmal Singh) vide orders dated 31.5.2007 and 13.11.2006 respectively wherein it was so held. 7. In LPA No. 2123/2006 and No. 1251/2007, the appellants namely, Dalel Singh and Trilochan Singh who were also workmen/drivers under the Management and were similarly retired at the age of 55 years approached this court by filing writ petitions under Article 226 of the Constitution of India claiming similar reliefs but the same was declined by two other learned Single Judges of this Court which orders have been assailed in the aforesaid LPA‟s. The writ petitions filed by them registered as CWP No. 22194/2005 and CWP No. 2708/98 were dismissed vide orders dated 02.11.2006 and 12.05.2005 respectively. The appellants have assailed those Judgments before us by placing reliance on the Judgments delivered in the case of Dharam Pal and Nirmal Singh (supra). On the other hand the Management has filed LPA bearing No‟s 1214/2007 and 121/2007 to assail the findings given in the aforesaid two Judgments where directions have been issued to them to retain the workmen till 60 years despite their condition being medical unfit to act as a driver after the age of 55 years. It is their submission that the aforesaid Judgments are un sustainable in law because while delivering the aforesaid Judgments, the ld. Single Judges have simply ignored LPA No.1214/2007 Page 9 of 34 the office order 99/1963 and the Circular of the Management dated 30.06.1998 and have also wrongly applied the provisions of Section 47 of the Disability Act as it is not the mandate of that provision to extend the age of superannuation of the drivers which has been fixed by statuary regulations. They have also relied upon the decision given by other Ld. Single Judges in the case of Trilochan Singh Aujla in CWP No.2708/98 decided on 12.5.2005, CWP 22194/2005 (case of Dalel Singh) decided on 02.11.2006 CWP No. 12182/2006 titled as Mohinder Singh Vs. DTC decided on 15.11.2006 as well as in CWP No. 4417/2003 titled as Rood Singh Vs. DTC decided on 07.04.2005 which in fact is an earlier Judgments to the Judgments delivered in the case of Dharam Pal and Nirmal Singh decided on 31.5.07 and 12.11.2006 and was also cited before the Ld. Judges who took a contrary view, instead of referring the matter to a larger bench. 8. The Management in support of their appeals and in opposition to the claims of the workmen/drivers submitted that the workmen/drivers had been retired from the service of the Management only at the age of superannuation despite incurring disability as they were not physically fit to act as a driver after 55 years of age and thus not found suitable for further retention in service in terms of the office order No. 99/1963 and the circular dated 30.6.98 issued under Clause (e) of Section 4 of the DRT Laws (Amendment) Act, 1971. It is stated that the said provision makes all orders as well as regulations, appointments, LPA 1214/2007 Page 10 of 34 notifications, bye-laws, schemes, standing orders and forms related to the Transport Services, whether made under the DRTA Act, 1950 or under the Delhi Municipal Corporation Act, 1957 in force immediately before the coming in to force of the said Act, insofar as they are not inconsistent with the provisions of these Act as continued to be in force as deemed Regulations made by the new Corporation under Section 45 of Road Corporation Act, 1950 unless superseded by regulations made subsequently under that Section as legal and binding on its workmen as a statute. Accordingly, the age of superannuation of the drivers as per their service regulation is 55 years. Their further extension in service up to 60 years is not as a matter of right but is subject to their medical fitness for the Job of Driver on year to year basis. The workmen/drivers cannot get the benefit of retirement at the age of 60 years as applicable to the other employees of the management in other categories because they were not performing the duties of a driver being medically unfit once they incurred some disability which made them unfit to act as drivers even before the age of their retirement. They were retained in service up to the age of 55 years only because of the benefit made available to them under Section 47 of the Disabilities Act by either providing them with a lower post or by giving them salary in the same pay scale till the age of superannuation i.e 55 years of age. 9. It has been submitted that in the case of Trilochan Singh LPA No.1214/2007 Page 11 of 34 Aujla reported in 2005 V AD Delhi 607 (impugned in LPA 1251/2007) the issue of the age of retirement of a driver has been considered in the light of the service regulations as also in the context of Section 47 of the disability Act. The learned Single Judge having considered the office order 99/1963 dated 4.10.63 and the circular dated 30.06.1998 held that every driver must appear, if wants extension of his service before a Medical Board for a medical test after having attained the age of 55 years as is envisaged in sub-paragraph (f) of the said office order. It was further observed that whilst the petitioner in that case was entitled to payments in the pay scale and shall receive all service benefits of a driver till he attained the age of 55 years but would have to superannuate on his attaining this age unless he is fit for extension of his service as a driver. In the case of Rood Singh CWP 4417/2003, Dalel Singh (impugned in LPA 2123/2006) and in Mohinder Singh Vs. DTC also similar views were reiterated. In the aforesaid cases the applicability of the provisions of Section 47 of the Disability Act were also considered in the aforesaid context and it has been said; The Act ( Disability Act) does not anywhere say that the person disabled during his service be given better emoluments and service conditions than what he was already enjoying. It already protects him from his employment in all respects since his employment as a driver would have come to an end at the age of 55 years being found to be medically unfit to work as a driver. There is no reason why his employment should be extended, despite disability, beyond the age of 55 years. . LPA 1214/2007 Page 12 of 34 10. It is submitted that in the case of Baljeet Singh Vs. DTC 83 (2000) DLT 286 relied upon by the other two Judges who delivered the Judgments in the case of Dharam Pal and Nirmal Singh, it has no where been stated that the aforesaid provision warrants extension of the service beyond the age of superannuation. The said Judgment only talks about granting the benefit of Section 47 of the Disabilities Act to a disabled person till the age of superannuation. It has also been submitted that the learned Single Judges failed to appreciate that the office order 99/63 and the circular dated 30.06.1998 are service regulations and statutory in nature. They are binding on the parties. 11. Before coming into force of the Disabilities Act which contains Section 47 providing several benefits to the disabled Government Servants while in service, the drivers used to retire prematurely on incurring disability i.e even before they attained the age of 55 years. However, after coming in to force of the aforesaid provision, the management started granting benefit of the provisions contained under Section 47 to its drivers even if they were unable to drive a vehicle by providing them either a lower post or salary and allowances till the age of their superannuation. 12. The disputes arose only because the drivers who incurred physical disability before reaching the age of superannuation and were retained in service up to the age of 55 years in view of the LPA No.1214/2007 Page 13 of 34 provisions contained under section 47 of the Disability Act but who were retired on attaining the age of superannuation started claiming retirement at 60 years on parity with other employees of the Corporation, whose retiring age is 60, even though they were not found fit to work as a driver after 55 years of age by the medical board. This was denied by the management who took a stand that the retention in service of the drivers despite suffering with disability till the age of superannuation was in fact an opportunity granted to them to work at a lower post just to give effect to the mandate of Section 47 of the Disability Act and that their further retention is not the mandate of the aforesaid provision. 13. Thus two contrary views have been taken by different Judges of this Court on the same subject. While the Ld. Judges in CWP 8159/2004 and 15309/2006 (case of Shri Dharam Pal and Sh. Nirmal Singh) subject matter of LPAs No. 121/2007 and 1214/2007, have granted extension of service up to 60 years; in case of Sh. Dalel Singh and Sh. Trilochan Singh (supra) who filed CWPs No. 2294/2005 and 2708/1998 the other two Judges held, that the extension of service was not a matter of right, vide judgments dated 02.11.2006 and 12.05.2005 respectively which are the subject matter of the LPAs No. 2123/2006 and 1251/2007. This controversy needs to be settled by us. 14. We would like to extend a word of caution here. While it is open to a Learned Judge to differ with a view of a coordinate LPA 1214/2007 Page 14 of 34 bench the sequiter is to make a reference to a larger bench on papers being placed before Hon‟ble the Chief Justice. The Learned Judge cannot simply say “with due respect, I do not agree to the ratio…” and proceed to take a contrary view as done in the impugned order in LPA 1214/2007 while referring to the earlier case of Dalel Singh (supra). Such an approach would result in conflicting opinions of coordinate benches resulting in judicial chaos & is, thus, improper. The Supreme Court in the recent judgment in Official Liquidator Vs. Dayanand & Ors. (2008) 10 SCC 1 has emphasized the adherence to basics of judicial discipline and the need for predictability and certainty in law. In that context, certain earlier judgments have been referred to where one bench of the Court not following the view of another coordinate bench, has been commented upon as under: 78. There have been several instances of different Benches of the High Courts not following the judgments/orders of coordinate and even larger Benches. In some cases, the High Courts have gone to the extent of ignoring the law laid down by this Court without any tangible reason. Likewise, there have been instances in which smaller Benches of this Court have either ignored or bypassed the ratio of the judgments of the larger Benches including the Constitution Benches. These cases are illustrative of non-adherence to the rule of judicial discipline which is sine qua non for sustaining the system. In Mahadeolal Kanodia v. Administrator General of W.B., this Court observed: (AIR p.941, para 19) “19…..If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if Judges of coordinate jurisdiction in a High Court start overruling one another's decisions. If one Division Bench of a High Court is unable to distinguish a previous decision of another Division Bench, and holding the view that the earlier decision is wrong, itself gives effect to that view the result would be LPA No.1214/2007 Page 15 of 34 utter confusion. The position would be equally bad where a Judge sitting singly in the High Court is of opinion that the previous decision of another Single Judge on a question of law is wrong and gives effect to that view instead of referring the matter to a larger Bench. In such a case lawyers would not know how to advise their clients and all courts subordinate to the High Court would find themselves in an embarrassing position of having to choose between dissentient judgments of their own High Court. “ [Emphasis added] 79. In Lala Shri Bhagwan v. Ram Chandra, Gajendragadkar, C.J. observed: (AIR p.1773, para 18) “18….It is hardly necessary to emphasize that considerations of judicial propriety and decorum require that if a learned Single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a Single Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a Single Judge, but should refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger bench to examine the question. That is the proper and traditional way to deal with such mattes and it is founded on healthy principles of judicial decorum and propriety. It is to be regretted that the learned Single Judge departed from this traditional way in the present case and chose to examine the question himself.” 82. In Dr. Vijay Laxmi Sadho v. Jagdish, this Court considered whether the learned Single Judge of Madhya Pradesh High Court could ignore the judgment of a coordinate Bench on the same issue and held: (SCC