HON'BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION No : 23778 of 1999 ORDER : In this writ petition, the petitioner, who is an employee of the Andhra Pradesh State Road Transport Corporation (APSRTC), seeks directions by way of Mandamus, declaring the action of respondents in not treating the period from the date of his retirement as a Driver, till the date of reporting to duty as a Cleaner (alternative appointment) as ‘not on duty’, as illegal and arbitrary. He further seeks directions to reckon his seniority from the date of his initial engagement as a Driver. 2. The petitioner was initially appointed as a Casual Driver at Palasa Depot in Srikakulam region and his casual services were de-casualised with eﬀect from 01.03.1989. While he was on duty on 01.07.1990 on the route from Palasa to Itchapuram, the bus he was driving, met with an accident by colliding with an opposite coming vehicle. In the said accident, he suﬀered fracture to his right leg and was admitted in Government hospital, Sompet, and thereafter, he took treatment at K.G.hospital, Visakhapatnam upto 31.07.1991. Thereafter, on 1st August 1991, after he was certiﬁed to be ﬁt to join duty, he was taken on duty by entrusting light duties to him. He was in service for about three months, and thereafter, on completion of the age of 45 years, he was asked to undergo medical examination on 08.11.1995, wherein, he was found medically unfit to work as Driver Grade-II, in view of the injuries suﬀered to his right leg in the accident that occurred on 01.07.1990. A medical certiﬁcate bearing No.9710, dated 29th January 1992, was issued to that eﬀect. Thereafter, he was sanctioned leave for one year as per Regulation 6(A)(4 & 5) of APSRTC Employees’ (Service) Regulations, 1964. Subsequently, on the ground that there are no vacant posts of Cleaners in Srikakulam Region for accommodating the petitioner under 10% quota earmarked for medically unﬁt Drivers, he was retired from service vide orders dated 30th January 1993. After completion of his compulsory leave period, the petitioner has also made a representation to the Regional Manager, seeking for alternative appointment. Though he was not given any alternative post for a couple of years after his retirement on 30th January 1993, but by oﬃce order dated 22.04.1997, passed by the Regional Manager in Proceedings No.P1/145(16)/92-RM;SKLM, the earlier retirement orders were cancelled, and as an alternative appointment, the petitioner was appointed as a Cleaner in the same Depot. In the said order, it is stated that the period from the date of his retirement in the category of Driver, till the date of reporting to duty as a Cleaner, be treated as ‘not on duty’. 3. In this writ petition, it is the case of the petitioner that as he was appointed as a Driver initially in the year 1989 and as he was compulsorily retired on account of disability suﬀered by him during the course of his employment, as such, there was no reason for not extending the beneﬁt of continuity of service to him. It is submitted that though he was in higher scale, even his pay was not protected after his reappointment as a Cleaner by virtue of order dated 22.04.1997. Discrimination is also pleaded alleging that one Sri S.Kameswar Rao, who was also medically unﬁt, was given the beneﬁt of appointment with continuity of service and seniority, but though the petitioner stands on the similar footing, he was deprived of the same. 4. In the counter aﬃdavit ﬁled on behalf of the respondents, it is stated that Cleaners are appointed from the medically unﬁt Drivers as per the circular instructions, and as much as there was no vacancy of Cleaner in the 10% quota meant for medically unﬁt Drivers, the petitioner was not given appointment after his retirement on 30th January 1993. Further, it is stated that as per the availability of vacancy, his representation made to the Regional Manager was considered and the petitioner was appointed as a Cleaner by fixing his pay as per the circular instructions issued with regard to ﬁxation of pay for such appointments. The respondents also denied the discrimination pleaded in petitioner’s case, as against the case of one S.Kameswar Rao. 5. Heard learned counsel for the petitioner as well as the learned Standing Counsel appearing for the respondent-Corporation. 6. In this case, it is not in dispute that the petitioner was initially appointed as a Casual Driver, but however, his casual services were de- casualised with eﬀect from 01.03.1989. From the counter aﬃdavit ﬁled on behalf of respondents, it is evident that the medical disability suﬀered by the petitioner is only because of the injuries suﬀered by him in the accident that occurred on 01.07.1990. In the service regulations of the Corporation framed under Section 45 of the Road Transport Corporation Act, 1950, there is a provision to grant compulsory leave for a period of one year for the employees, who are medically unﬁt. But however, on the ground that even after one year no vacant post of Cleaner was available to accommodate the petitioner within the 10% quota prescribed for the Drivers who are found medically unﬁt, he was compulsorily retired from service. Thereafter, when the representation of the petitioner was pending, the Regional Manager himself has considered his request for alternative appointment and by his order, dated 22.04.1997, cancelled the earlier retirement orders and appointed the petitioner as a Cleaner. 7. In the meanwhile, to give eﬀect to the proclamation on the full participation and equality of the people with disabilities in the Asian and Paciﬁc Region, the Parliament has enacted the Central Act namely, “Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as ‘the Act’). The said piece of legislation is a potential legislation to the disabled persons. As provided under Section 47 of the Act, no establishment shall dispense with or reduce in rank, an employee who acquires disability during his service. Provided however, 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. It also provides that if a suitable post is not available, the employer is under obligation to create a super-numerary post until a suitable post is available to accommodate such disabled person. Though such an enactment was not there, as on the date of retirement of the petitioner, but by the time the order, dated 22.04.1997, was passed cancelling the earlier order of retirement and giving an alternative appointment to the petitioner, the Act has came into force with eﬀect from 07.02.1996 vide Notification No.S.O.107 (E). 8. In view of the admitted fact that the disability suﬀered by the petitioner was due to the injuries suﬀered by him in the accident that occurred on 01.07.1990 while he was on duty in the Corporation itself, there is no reason for not protecting his last drawn pay when he was re-appointed by oﬃce order dated 22.04.1997. Though it is pleaded by the learned Standing Counsel for the respondents that the petitioner was retired on 31st January 1993, but however, by sympathetically considering his case, he was given alternative appointment on 22.04.1997. 9. The learned counsel appearing for the petitioner has also placed reliance on a judgment of the Hon’ble Supreme Court in the case of Narendra Kumar Chandla v. State of Haryana[1]. In the aforesaid judgment, one arm of an employee, who was suﬀering with cancer, was amputated due to Sarcoma. As he was unable to perform the duties of the post he was holding, he was transferred to lower pay-scale. On considering such a case, Hon’ble Supreme Court was pleased to hold that in such of the cases, where the disability suﬀered by an employee is during the course of employment, every endeavor must be made to adjust him in a post where he could suitably discharge his duties, protecting his last drawn salary. The judgment referred above, deﬁnitely supports the case of the petitioner in this case. In this case also, it is not in dispute that the disability suﬀered by the petitioner, which ultimately led to compulsory leave for one year and thereafter to his compulsory retirement, was during the course of his employment only. Merely because a vacant post was not available to accommodate him immediately, that itself, was no reason to deprive him of the employment. In any event, after enforcement of the provisions of the Act, which is a potential legislation for the disabled persons, more particularly, in view of the beneﬁt provided under Section 47 of the said Act, there was no reason at all for not protecting his pay after his appointment to the suitable post of Cleaner, pursuant to the order dated 22.04.1997. 10. Further, the petitioner has also claimed the beneﬁt of continuity of service and seniority in the category of Driver, but however, it is to be seen that he was retired in 1993, subsequently, considering his representation soon after the availability of suitable post, he was given alternative appointment in 1997, and thereafter, there was also delay of two years on the part of the petitioner in approaching this Court. As such, I do not ﬁnd any valid ground for grant of any relief with regard to continuity of service for the period for which the petitioner was out of service from the date of his retirement as a Driver till the date of his joining duty as a Cleaner. In this regard, in the order dated 22.04.1997, it is rightly declared that the said period shall be treated as ‘not on duty’. Further, as much as the petitioner is appointed in a separate post of Cleaner, he cannot seek any seniority from the date of his initial appointment as a Driver, but however, he is entitled for protection of pay. 11. For the aforesaid reasons, I dispose of the writ petition by allowing the same in part, directing the respondents to extend the last drawn pay to the petitioner in the same scale of Drivers, which he was drawing as on the date of his retirement i.e. on 30th January 1993 from the date of his re- appointment pursuant to order dated 22.04.1997, and to extend all other consequential beneﬁts thereafter. The petitioner is entitled for arrears of salary on account of such re-ﬁxation from 22.04.1997 onwards. However, it is made clear that the petitioner is not entitled for any arrears for the period for which he was not on duty from the date of his retirement as a Driver, till the date of his re-appointment as a Cleaner. 12. Writ petition is allowed in part to the extent indicated above. No order as to costs. ______________________ R. SUBHASH REDDY, J 7th November 2008 ajr [1] AIR 1995 SC 519