1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6217 OF 2008 Jairam S/o Dhanaji Shinde, Age : 50 Years, Occu. : Service, R/o S. T. Colony, S.R.P. Road, Opposit to Kalyan Bhavan, Dhule, Dist. Dhule. .. .. Petitioner Versus 1. The Maharashtra State Road Transport Corporation, Dhule Division, Dhule, Through its Divisional Controller, 2. The Depot Manager, Maharashtra State Road Transport Corporation, Dhule. .. .. Respondents Shri P. S. Dighe, Advocate for the Petitioner. Shri D. S. Bagul, Advocate for the Respondent No. 1 and 2. CORAM : B. R. GAVAI, AND N. D. DESHPANDE, JJ. DATE : 27TH AUGUST, 2009. ORAL ORDER [Per N. D. Deshpande, J. ] : 1. Rule. Rule made returnable forthwith. Heard by consent. 2 2. The petitioner who is a peon has filed this petition under Article 226 of Constitution of India, seeking directions in the nature of writ of mandamus, to respondents to refix his pay in the scale of the post of driver as per circular dated 10.09.1975 and the difference in the pay and further to give service benefits to the petitioner viz. protection of pay scale and continuity in the service without break. Material facts can be stated briefly as under : 3. The petitioner was earlier in the employment of the respondents from 12.01.1987 to 23.10.1994 for heavy duty as driver till he was found unfit as per the certificate issued by Residential Medical Officer J. J. Hospital Bombay, dated 24.10.1994 due to serious injury he had sustained in an incident dated 15.03.1988 and further complications therefrom. 4. On 15.03.1988 there was a "call of Bandh", by Bhartiya Janta Party. The petitioner was on duty as driver and when he reached at Trimbakeshwar near Nashik he was gheraoed by the supporters of the B.J.P. They started pelting stones at the petitioner's vehicle and he was also beaten by the mob. Petitioner was seriously injured and become unconscious on the spot. The petitioner was under medical treatment for 54 days, thereafter he joined his duty as driver at Palghar Depot. 5. On 17.10.1989 the petitioner was transfered from Palghar to Dhule. He was suffering pain in the stomach and experienced 3 difficulties to work as driver. Therefore, petitioner made representation to Deputy General Manager (PIR) for alternate employment. As per his representation from 12.09.1994, the Deputy General Manager considered his request on the ground that, he had suffered injuries as above in the year 1988 and, therefore, he should be given suitable job. The Residential Medical Officer J. J. Hospital also issued certificate dated 24.10.1994 for the petitioner was "unfit for heavy duty as driver". Thus petitioner came to be appointed as a peon in the pay scale of 850 per month. It was communicated to him that, the said appointment was on temporary basis vide fresh appointment order without any claim to seniority and he was posted at Shepur as peon. 6. Thereafter, the petitioner made several representations to the respondents for fixing his pay in the scale of a driver. In reply respondent No. 1 by letter dated 29.12.2006 informed the petitioner that, he was appointed as peon afresh and, therefore, he was rightly fixed in the pay scale of the peon. 7. By another letter dated 21st June, 2007, the respondent No. 1 further informed that, the person who acquired disability while in service, such persons are given alternate employment and their pay scale should be fixed as per Government Circular dated 12.04.2006. It was further stated that, the petitioner was given alternate employment on 08.11.1995, therefore, circular dated 12.04.2006 is not applicable and as such, respondent declined to change the said pay scale as per communication dated 07.07.2007. 4 8. On behalf of petitioner, Rajya Parivahan Yantrik Kamgar Sanghtna an association made representation dated 22.12.2007, to respondent No. 1/General Manager, Maharashtra State Road Transport Corporation, Mumbai to reconsider the claims of the petitioner. 9. We have perused the relevant circulars dated 10th September, 1975 and 12th April, 2006, in the light of the submissions made during the course of hearing by both the parties and also in the light of the statutory obligation to continue the person who acquired disability during service. We have perused relevant Section 47 of the Persons with Disability (Equal Opportunities Protection of Rights and Full Participation) Act, 1995. It clearly protect the pay scale of the petitioner. 10. It is admitted that, petitioner had acquired disability while on duty as driver and, therefore, he was given alternate employment and now posted as peon. The learned counsel for the petitioner has placed reliance on the judgment of this Court in Writ Petition No. 701/2004 Bahadurkhan Sansher Khan Vs. Maharashtrate State Road Transport Corporation, dated 25th November, 2004 and also on the decision of Division Bench of this Court in Writ petition No. 5682 of 2007 Ambu Yasho Wagh Vs. Maharashtra State Road Transport Corporation dated 04th March, 2008. Both the decisions are on the same point, deals with similar facts. In the light of ratio laid down, we have no hesitation to consider the petitioners case and the petition deserves to be allowed. 5 11. Upon consideration of record and for the reasons stated above, the petition is allowed. 12. Rule is made absolute in terms of prayer clause "B" and "C". [ N. D. DESHPANDE, J.] [ B. R. GAVAI, J.] bsb/August 09