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IN THE HIGH COURT OF DELHI
SANJAY KISHAN KAUL,MOOL CHAND GARG
DELHI TRANSPORT CORPORATION - Appellant
Versus
DHARAM PAL (EX.DRIVER) - Respondent
LPA 1214/2007
Decided On : 09-01-2009
PERSONS WITH DISABILITIES (EQUAL OPPORTUNITIES, PROTECTION OF RIGHTS AND FULL PARTICIPATION) ACT 1995 - SECTION 47 - RETIREMENT AGE OF DRIVERS - DELHI TRANSPORT CORPORATION (DTC) - OFFICE ORDER 99/1963 AND CIRCULAR DATED 30.6.1998 - INTERPRETATION - DISCRIMINATION - EXTENSION OF SERVICE BEYOND SUPERANNUATION - MEDICAL FITNESS - SERVICE REGULATIONS - STATUTORY PROVISIONS - WELFARE LEGISLATION - SECTION 47 OF THE DISABILITIES ACT - SCOPE AND APPLICABILITY - RETIREMENT AGE OF DRIVERS - EXTENSION OF SERVICE - MEDICAL FITNESS - SERVICE REGULATIONS - STATUTORY PROVISIONS - WELFARE LEGISLATION.
Fact of the Case:
The dispute arose due to conflicting views taken by different judges of the Delhi High Court on the issue of retirement age of drivers working in DTC who incurred physical disability before reaching the age of superannuation and were retained in service till the age of 55 years on account of the benefits made available to them by Section 47 of the Disability Act. Some judgments held that Section 47 mandates extension of service till 60 years, while others held that extension of service was not a matter of right and was subject to medical fitness.
Finding of the Court:
The court held that the age of superannuation of a driver under DTC is 55 years and Section 47 of the Disability Act does not ipso facto extend the tenure of service of a driver. The benefits granted to such drivers despite incurring disability during tenure of his service that is up to 55 years would not extend his service beyond 55 so as to enable him to continue in service may be at a lower post for which the normal age of retirement is 60.
Issues: 1. Whether Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 mandates that drivers working in DTC 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? 2. 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? 3. 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.
Ratio Decidendi: 1. Section 47 of the Disability Act does not extend the age of superannuation of a driver. 2. The benefit of extension of service is only to extend the services of those drivers, who otherwise retire at the age of 55 years but can act as a driver subject to their medical fitness on year to year basis. 3. Keeping a lower retiring age for strenuous jobs like that of a driver cannot be termed as either arbitrary or illegal.
Final Decision: The appeals filed by the management were allowed and the judgments subject matter of LPAs 1214/2007 and 121/2007 were set aside, leaving parties to bear their own cost. However, any benefit extended to a workman driver by virtue of the two judgments will not be taken away and recovered.
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 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 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 and 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 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
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