IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 3RD JUNE 2011 / 13TH JYAISHTA 1933 WP(C).No. 13903 of 2011(K) ------------------------- PETITIONER : -------------------- T.ROSE CHANDRAN, PERINGAZHY VEEDU, MALAYAM, MALAYAM.P.O., THIRUVANANTHAPURAM. BY ADV. SRI.D.KISHORE RESPONDENT(S): ------------------------- 1. THE KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR, TRANSPORT BHAVAN, FORT.P.O., THIRUVANANTHAPURAM-695 023. 2. THE ASST.TRANSPORT OFFICER, KERALA STATE ROAD TRANSPORT CORPORATION, VELLANAD DEPOT, THIRUVANANTHAPURAM DIST., -695 543. 3. THE PERSONNEL MANAGER, CHIEF OFFICE, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT.P.O., THIRUVANANTHAPURAM -695 023. R1 TO R3 BY ADV. SRI. V.V. NANDAGOPAL NAMBIAR, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 13903 of 2011(K) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE STANDING DISABILITY ASSESSMENT BOARD CERTIFICATE DATED 20.6.2008. EXT.P2 : COPY OF THE APPLICATION DATED 21.7.2008 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P3 : COPY OF THE PROCEEDINGS OF 2ND RESPONDENT DATED 25.2.2011. EXT.P4 : COPY OF THE PROCEEDINGS NO.E-1433/11/VLND DATED 28.4.2011 OF THE 2ND RESPONDENT. EXT.P5 : COPY OF THE MEDICAL STANDING DISABILITY ASSESSMENT BOARD CERTIFICATE DATED 14.1.2011. EXT.P6 : COPY OF THE REPRESENTATION DATED 21.5.2011 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS - NIL //TRUE COPY// P.A. TO JUDGE Mn C.T.RAVIKUMAR, J. ---------------------------- W.P.(C)No.13903 of 2011 ---------------------------- Dated this the 3rd day of June, 2011 JUDGMENT The petitioner is a driver under the Kerala State Road Transport Corporation (for short `the Corporation'). He commenced his career under the Corporation in July, 2000 and according to him, he acquired physical disability during his service. After discharging the duties of a driver for a decade or thereabouts he found it difficult to continue to discharge the same on account of the physical disability developed during the service. Thereafter, based on Ext.P2 he was sanctioned light duty for six months. Pursuant to Ext.P4 the petitioner has produced Ext.P5 which is a disability certificate issued by the Standing Disability Assessment Board. Subsequently, he has submitted Ext.P6 representation requesting to allow him to continue in the light duty. Now, the petitioner is left with only two years of service. As per Ext.P4 it was decided not to extend light duty after 27.5.2011. It is in these circumstances that this WP(C).No.13903/2011 2 writ petition has been filed. 2. 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 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:- “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 WP(C).No.13903/2011 3 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.” Evidently, the contention of the petitioner is that he acquired the disability to the tune of 40% during his service. He commenced his career as Driver under the first respondent in July, 2000. He continued to discharge the said duty till the issuance of Ext.P1 certificate dated 20.6.2008. Even according to the petitioner, he acquired the aforesaid disability on account Ophthalmic problems. 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 provisions the petitioner has produced Exts.P1 and P5 medical certificates. True that, as per the said certificates it was certified that the petitioner is having permanent physical disability of 40%. 2. 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 WP(C).No.13903/2011 4 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 became 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. To substantiate the said claim the petitioner has produced Exts.P1 and P5 medical certificates. No doubt, they 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 originally holding prior to the allotment of light duty 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. As already noticed hereinbefore, the petitioner has produced Exts.P1 and P5 medical certificates to fortify his stand. If in the opinion of the respondents a further opinion from a duly constituted Board is required it would definitely be WP(C).No.13903/2011 5 open to the competent authority to refer the matter, in accordance with law, to a duly constituted Medical Board to assess the percentage of permanent disability, if any, 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. If the contention of the petitioner is true, it would be in public interest to put off the petitioner from the aforesaid duty because engaging a person with 40% permanent physical disability to drive a heavy vehicle may not only endanger his life but also endanger the lives of others. 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 Exts.P1 and P5 or to make the petitioner undergo the formalities required for the purpose of assessing the percentage of physical disability, if any, to ascertain whether the petitioner is entitled to get the benefits 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 said purpose. This shall be done by the WP(C).No.13903/2011 6 competent authority among the respondents within a period of three weeks from the date of receipt of a copy of this judgment. The right of the petitioner to get the benefits of the aforesaid provisions and thereby, alternative employment will depend upon the decision based on the same by the competent authority based on opinion of the competent medical authority. However, taking note of Exts.P1 and P5 I am of the view that the respondents shall not engage the petitioner presently as a driver and shall continue to assign light duty to the petitioner till a decision is taken on the claim of the petitioner based on the aforesaid directions. 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 jma //true copy// P.A to Judge