V. Giri, J.

1. Petitioner joined service in the Department of Mining and Geology as driver in the year 1998. While so, he started suffering from hearing impairment and this progressed to an extent where he sustained a disability. Ext.P1 medical certificate shows that the Medical Board assessed his disability at 40%. In the circumstances, the petitioner became a disabled person as defined in the Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1995 {hereinafter referred to as the Act).

2. Petitioner, finding it difficult to continue as a driver, applied for a category change. Though it was initially declined, the petitioner again over the Government vide Ext.P2 requesting for a posting to a clerical post having the same scale of pay. Apparently, by Ext.P3 reply, the Director for Mining and Geology was directed to report what is the equivalent post in which the petitioner can be accommodated. By Ext.P4 the Director reported that if a category change is permitted, the petitioner could be accommodated as a Lower Division Clerk and that there is actually a vacancy in the head office at Thiruvananthapuram. By Ext.P5 the Government informed the Director that though the scales of pay of the driver and that of the Lower Division Clerk are one and the same, the two posts cannot be considered as having the same rank and that the petitioner can only be accommodated as a peon in circumstances where he has been assessed as a disabled person and therefore unable to continue his functions as a driver. A reconsideration sought for by the petitioner as per Ext.P7 was also rejected under Ext.P8 taking the same stand. Exts.P5 and P8 have been challenged in the writ petition.

3. The respondents have filed a counter affidavit, inter alia, contending that the basic qualification, duties and responsibilities of the Lower Division Clerk is different from that of a driver and the petitioner is not qualified to be appointed as Lower Division Clerk. Therefore, he cannot be granted a category change to the post of Lower Division Clerk. It is also pointed out in the counter affidavit that even if the petitioner is posted as a peon on category change, his pay would be protected in terms of Section 47 of the Act as such.

4. I heard Mr. Jaju Babu, learned counsel for the petitioner and learned Senior Government Pleader Mr. Nandakumar.

5. The main thrust of the petitioners contention rests on Section 47 of the Act, which 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 shifter 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 provision of this section.

6. The Act is intended to give effect to the proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region. Appropriate Government is defined in section 2 A, as the State Government in relation to a State Government or any establishment wholly or substantially financed by that Government, or any local authority, other than a Cantonment Board.

7. Persons with disability is defined in Section 2(t) of the Act as a person suffering from not less than forty percent of any disability as certified by a medical authority