Directions given for providing alternate job with back wages, pay protection and service benefits.

A.P. Shah, C.J.

Heard Mr. R. Parthiban, learned counsel appearing for the appellant. The challenge in the appeal is to the order of the learned single Judge directing the appellant to give alternative employment to the respondent in view of the provisions of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (Act 1 of 1996) (hereinafter referred to as the ‘Disabilities Act’).

2. The respondent was originally employed as a driver in the Pallavan Transport Corporation. During the year 1985, he was transferred to the appellant Corporation with continuity of service and same conditions of service. It appears that in all State owned Transport Corporations including the appellant Corporation drivers are sent for eye checkup every year on attaining the age of 40 years. Based on that procedure the respondent was sent to eye checkup, and wherein he was referred to Medical Board. The Medical Board finally opined that the respondent was unfit for driving due to colour blindness. Based on the report of the Medical Board the respondent was discharged from service on 15.06.2004.

3. Learned single Judge following the decision of the Supreme Court in Kunal Singh Vs. Union of India and Another, (2003) 4 SCC 524) allowed the writ petition, and directed the transport corporation to give alternate employment to the petitioner - employee, protecting his pay and other service benefits.

4. In Kunal Singh Case (supra) the Supreme Court held as follows:-

“Merely because under Rule 38 of the CCS (Pension) Rules, 1972, the appellant got invalidity pension is no ground to deny the protection mandatorily made available to the appellant under Section 47 of the Act. Once it is held that the appellant has acquired disability during his service and if found not suitable for the post he was holding, he could be shifted to some other post with same pay scale and service benefits; if it was not possible to adjust him against any post, he could be kept on a supernumerary post until a suitable post was available or he attains the age of superannuation, whichever is earlier. It appears no such efforts were made by the respondents. They have proceeded to hold that he was permanently incapacitated to continue in service without considering the effect of other provisions of Section 47 of the Act.”

5. Learned counsel appearing for the appellant Corporation strenuously contended that colour blindness is congenital and not acquired during the course of employment and hence, it cannot be considered as disability within the meaning of Section 2(i) of the Disabilities Act. He submitted that for considering the claim of a disabled person to continue in service or to provide alternate employment, as per the provisions of Section 47 of the Disabilities Act, the employee should have acquired disability during the course of his employment, and for congenital disability like the one acquired by the respondent, the provisions of Section 47 are not applicable. He referred to the opinion given by the Medical Board, which certified that the respondent is ‘unfit for driving due to colour deficiency’. In support of his contention the learned counsel placed reliance on an unreported decision of the Division Bench of this Court in W.A.No.305 of 2005 dated 03.04.2006 (A. Aruldoss Vs. The General Manager, Tamil Nadu State Transport Corporation (Kumbakonam) Ltd. & another).

6. We find absolutely no merit in the submission of the learned counsel for the appellant Corporation. In the light of the decision in Kunal Singh’s case, it is clear that Section 47 deals with an employee who has acquired disability during service and it is not necessary that he should have suffered 40% disability. The test is whether an employee, after acquiring disability, has become unsuitable for the post he was holding earlier, and it is provided by Section 47 that in such a case, the employee could be shifted to some other post wit