The court established that Section 47 of the Act protects employees who acquire a disability during their service, emphasizing the duty of the employer to provide alternative employment with the same benefits, irrespective of probationary status or the percentage of disability.

I.S. Mehta, J.:--

1. Aggrieved from the order of the Central Administrative Tribunal, Principal Bench, New Delhi dated 24.09.2012 in O.A. No. 566 of 2012, the petitioner has preferred the present writ petition under Articles 226 and 227 of the Constitution of India for setting aside the aforesaid order and for issuing necessary directions to the respondent.

2. The brief facts of the case are that the petitioner Pawan Kumar s/o Shri Sultan Singh was employed as a Driver with the respondent i.e. Delhi Transport Corporation vide appointment letter bearing No. PLD-III/DSSSB/Driver/2008/3697 dated 23.12.2008 in the Pay band of Rs. 5200-20200 + grade pay of Rs. 2000 and other allowances initially on probation for a period of two years. On 11.03.2009, during the period of probation, the petitioner suffered an injury when a fire-cracker hit his right eye which left him visually handicapped by 30% as is exhibited by the certificate dated 16.05.2009 issued by Dr. Rajendra Prasad Centre for Ophthalmic Sciences. The petitioner was thereafter asked by the respondent not to resume duties after 17.04.2009 after his medical examination was conducted at the direction of the respondent.

3. Subsequently, the petitioner filed an O.A. No. 566/2012 before the Central Administrative Tribunal, Principal Bench, New Delhi seeking issuance of a direction to recruit him in the alternative suitable post with continuity in service in the pay scale, allowances and other benefits of Driver. The Ld. CAT vide order dated 24/09/2012 declined to give any relief to the petitioner and dismissed his OA.

Hence, the present writ-petition by the petitioner.

4. The basis of the relief sought in the present writ petition is under the provisions of “The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995” (hereinafter referred to as ‘the Act’). Mr. Vijay Sharma, learned counsel for the petitioner argued that the petitioner acquired the injury/disability for no fault of his, during the period in which he was on probation as a Driver employed with the respondent and is entitled to benefit under Section 47 of the Act and deserves to be given an alternative post in the same pay scale with the respondent along with the back wages, seniority and other service benefits.

5. On the other hand, the learned counsel for the respondent Ms. Latika Chaudhary has drawn our attention to Section 2(t) of Act and pointed out that requirement under section 2(t) for disability is 40% and since the petitioner has not suffered 40% disability, he cannot be given alternative employment under Section 47. Section 47 of the Act is reproduced hereinunder:

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 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. (underlining supplied)

Section 2, the definition clause of the Act defines a “person with disability” in clause (t) as follows:

“Sec 2(t) -”person with disability” means a person suffering from not less than forty per cent of any disability as certified by a medical authority”.

Section 2, the definition clause of the Act defines the term “disability” in clause (i) as follows:

“Disability”