IMPORTANT POINTS
Upon shifting category based on disability, an employee is entitled to the same pay scale and service benefits.

JUDGMENT :

The petitioner is an employee of KSRTC. Based on his disability, he was allowed category change. Total disability of the petitioner is 40%. The category change was from higher post to lower post. The present grievance of the petitioner is that pay protection was not given to him.

2. Section 20(4) of the Rights of Persons with Disabilities Act, 2016 provides thus :

“20. Non-discrimination in employment

(4) No Government establishment shall dispense with or reduce in rank, an employee who acquires a disability during his or her service:

PROVIDED that, if an employee after acquiring disability is not suitable for the post he was holding, shall 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.”

On a mere reading of the provision itself, it is clear that upon shifting category based on disability, an employee is entitled to the same pay scale and service benefits.

3. The learned Standing Counsel for KSRTC submits that the employee would be entitled for the lower category change based on a biparti settlement entered into by the KSRTC management with the union. Biparti agreement only relates to the category changes. It does not stipulate anything in regard to the scale of pay as is applicable. It is to be noted that the statutory provisions referable under the Rights of persons with Disabilities Act is based on larger public policy. It cannot be contracted out. The entitlement of protection of pay is based on statutory provisions as above. Therefore, it cannot be denied to an employee who acquired disability during his service. Further, the biparti agreement also does not stipulate anything to the contrary.

In the light of the above, I am of the view that the petitioner is entitled for protection of pay before the category change. The petitioner shall be given category change as referred to in the impugned order with pay protection without any delay. The arrears of the petitioner shall be disbursed to the petitioner within two months.