Supernumerary post should be created for accommodating disabled workman.

P.R. Shivakumar, J.

This writ appeal is directed against the order dated 19.08.2006 in W.P.No.6950 of 2006 whereby the appellant herein was directed to reinstate the writ petitioner in a suitable alternative employment with pay protection, continuity of service and back wages.

2. Thebrief facts leading to the filing of the present writ appeal can be stated thus:

(i) The respondent herein was appointed as a driver in the appellant Transport Corporation, Karaikudi. Initially, he was employed as daily wage driver from 01.02.1997 and his services were regularized with effect from 01.11.1997 by an order-dated 09.12.1997. Subsequently, he was transferred to Madurai Branch of the appellant Transport Corporation. At that time, he was sent to Suba Savuka Hospital, Karaikudi for yearly medical check up and as per the certificate dated 11.10.2002 given by the said hospital; he was having defective colour vision. Hence, by order-dated 14.12.2002, the petitioner was directed to appear before the Regional Medical Board, Madurai and accordingly, the respondent appeared before the Medical Board. Based on the report of the Medical Board, the appellant issued a show cause notice to the respondent on 27.12.2002 stating its proposal to discharge the respondent from the post of driver on the ground that he was suffering from defective colour vision and hence he was unfit to work as a driver. After the respondent submitted his explanation on 16.01.2003, the appellant Transport Corporation discharged him from the service by order-dated 31.01.2003. The said order was challenged in W.P.No.6950 of 2006 for the above said relief.

(ii) The learned Single Judge, after hearing both sides, relying on the judgment of the Supreme Court in Kunal Singh v. Union of India and another reported in 2003(4) SCC 524, allowed the writ petition and issued a direction against the appellant as stated above. Hence this writ appeal at the instance of the appellant herein/respondent in the writ petition.

3. We have heard the submissions made by Mr.K.Jayaraman, learned counsel appearing for the appellant and by Mr.Arunachalam, learned counsel appearing for the respondent and paid our anxious considerations to the same. We have also perused the records including the relevant rules and the judgment of the learned Single Judge.

4. The learned counsel for the appellant has submitted that the disability with which the respondent is now found is not the one acquired by him in the middle of service but was found from birth as a congenital disorder and therefore, he shall not be entitled to seek alternative employment.

5. Per contra, the learned counsel for the respondent would contend that at the time of his entry into service as a driver, he was not found with any such disorder and that even at the time of confirmation which was done after getting medical opinion, the above said defect was not found and hence it should be presumed that the disorder of defective colour vision was a disability acquired in the middle of the service.

6. After paying our attention to the rival submissions made on behalf of both parties, we are of the considered view that the above said argument put forth on behalf of the appellant by the learned counsel has got to be discountenanced. The learned Single Judge has assigned elaborate and valid reasons for coming to the conclusion that the appellant had failed to substantiate his contention that the disability was found from birth. We are not in a position to disagree with the learned Single Judge in this regard. The respondent was appointed as a daily wage driver on 01.02.1997. Only after the medical officer confirmed his physical fitness, his services were confirmed by order-dated 09.12.1997. After a lapse of five years thereafter, he was found to suffer from colour vision defect by the Medical Board, which was constituted at the request of the appellant. The appellant has not produced any expert opinion to show that colour vision defect c