IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 11TH DECEMBER 2008 / 20TH AGRAHAYANA 1930 WP(C).No. 22533 of 2008(G) -------------------------- PETITIONER(S): --------------- SANKARAN NAMBOOTHIRI N.S, AGED 41, S/O N.K. SANKARAN NAMBOOTHIRI, KIZHEKKENEELAMANA ILLAM,VAKATHANAM P.O., KOTTAYAM, NOW WORKING AS WATCHER,MUNDAKKAYAM, PATHASARATHY DEVASWOM, MUNDAKKAYAM - KOTTAYAM DIST BY ADV. SRI.PAULSON THOMAS RESPONDENT(S): --------------- 1. TRAVANCORE DEVASWOM BOARD, REPRESETED BY SECRETARY, TRAVANCORE DEVASWOM OFFICE, THIRUVANANTHAPURAM. 2. DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, THIRUVANANTHAPURAM. 3. ASSISTANT COMMISSIONER, TRAVANCORE DEVASWOM OFFICE, KOTTAYAM. ADV. SRI.K.N.VENUGOPALA PANICKER, SC, TDB FOR R1-3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N.RAVINDRAN, J. ------------------------------- W.P.(C) No.22533 OF 2008 ------------------------------- Dated this the 11th December, 2008. J U D G M E N T Heard both sides. The petitioner who entered service on 21.12.1998 is presently working as Watcher in the Mundakkayam Parthasarathy Devaswom. He applied for change of category from Watcher to Peon in the year 1997 on medical grounds. While the said application was pending, the Board issued Ext.P4 proceedings dated 10.3.1998 providing for change of category of temple employees to that of Peon, if the applicant has got a minimum of 40% disability certified by the Medical Board. Relying on Ext.P4, the petitioner moved the Board in Ext.P5 representation and thereafter filed W.P.(C) No.11185 of 2006 in this Court. By Ext.P6 judgment delivered on 19.6.2006, this Court disposed of the said writ petition with a direction to the Travancore Devaswom Board to consider the petitioner's request for change of category and take a decision thereon, within two months from the date of receipt of a copy of this judgment. The W.P.(C) No.22533/2008 2 Board, thereafter passed Ext.P7 proceedings dated 10.10.2006 giving change of category and included the name of the petitioner as Sl.No.195 in the list of persons eligible for category change. On receipt of Ext.P7 proceedings, the petitioner submitted Ext.P8 representation pointing out that he had applied for change of category on medical grounds and he should not be included in the general list of temple employees who have been given change of category. In this writ petition, the petitioner inter alia prays for a direction to the respondents to consider his claim for change of category on medical grounds, in terms of the decision of the Board, evidenced by Ext.P4. 2. The respondents have filed a statement through their Standing Counsel disputing the petitioner's entitlement for change of category. They rely on the notification dated 20.11.2006 issued by the Board wherein it is stipulated that temple employees suffering from contagious diseases or from physical or mental disability or infirmity can retire from service on invalid pension. The respondents further contend that as the W.P.(C) No.22533/2008 3 petitioner is entitled for invalid pension, he has got the option to retire from service on invalid pension and that his claim for change of category is not sustainable. 3. I have considered the submissions made at the Bar by the learned counsel appearing on either side. The Invalid Pension Scheme issued as per notification dated 20.11.2006 indicates that it is an option available to the employee and that it does not compel persons suffering from physical disability to retire from service on invalid pension. If Annexure-A1 indicates a compulsion on persons with disability to retire from service on invalid pension, it will offend the provisions contained in Section 47(1) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, hereinafter referred to as the 'Act' for short. Section 47 of the said Act stipulates that no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service. The proviso to Sub-section (1) of Section 47 of the Act states that if an employee, after acquiring disability is not suitable for W.P.(C) No.22533/2008 4 the post he was holding, he should be shifted to some other post with the same pay scale and service benefits. Therefore, the Board cannot compel the petitioner to retire from service on invalid pension. The decision taken by the Board evidenced by Ext.P4, which is in tune with Section 47 of the Act permits change of category, if the applicant seeking change of category suffers from a minimum of 40% disability. The Medical Board of the Medical College Hospital, Kottayam, has in Ext.P3 certified that the petitioner suffers from 40% disability. He is therefore eligible to be given category change in terms of Ext.P4 proceedings of the Board. In these circumstances, I dispose of the Writ Petition with a direction to the respondents to consider the request made by the petitioner in Ext.P8 representation for change of category on medical ground, having regard to the stipulations in Ext.P4 proceedings dated 10.3.1998 issued by the Board and Section 47(1) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, W.P.(C) No.22533/2008 5 1995. A decision in that regard shall be taken within two months from the date of receipt of a copy of this judgment. It will be open to the Board to subject the petitioner to medical examination by a duly constituted Medical Board, if the Board wishes to do so. P.N.RAVINDRAN, JUDGE nj.