HON’BLE SRI JUSTICE NAGESH BHEEMAPAKA WRIT PETITION No. 1292 OF 2017

O R D E R:

Petitioner is stated to have been appointed as driver in the respondent – State Road Transport Corporation in 1995. While so, he was declared unfit for the said post during medical examination at Regional Hospital vide medical certificate dated 02-01-2012 and at NIMS through medical certificate dated 28-01-2015. When he was referred to APSRTC Medical Board at Tarnaka, Hyderabad, doctors thereat also held that he was unfit to the post of the driver through medical certificate dated 05-06-2012. Petitioner therefore, requested respondents to provide alternative employment but the latter kept him out of employment for the last three years and they did not pay him salary from 12-01-2012 to 22-05-2015. Thereafter, respondents retired petitioner through proceedings dated 22-05-2015 which is impugned in this Writ Petition. Petitioner contends that the said proceedings is illegal, arbitrary and contrary to the provisions of the APSRTC Service Regulations as well as provisions of the Persons with Disabilities (Equal, Opportunities, Protection of Rights and Full Partition) Act, 1995 (for short, ‘the Act’) and violation of Fundamental Rights guaranteed under the Constitution of India. He also contends

that Section 47 of the said Act says that no establishment shall dispense with or reduce in rank an employee who acquires a disability during his service. Proviso makes it clear 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. In similar circumstances, this Court allowed Writ Petition No. 22269 of 2012 by order dated 25-09-2012 directing the Corporation to pay salary to petitioner for break period of service. Challenging the same, the Corporation filed Writ Appeal No. 739 of 2013 and the same was dismissed following the judgments of the Hon’ble Apex Court in Kunal Singh v. Union of India¹ and that of this Court in K. Moses v. APSRTC, Musheerabad, Hyderabad² holding that respondent is under obligation to provide alternative employment with all benefits. Following the same, this Court allowed Writ Petition No. 7633 of 2013 and batch by order dated 29-01-2016 and Writ Petition No. 30412 of 2013 by order dated 03-02-2014 directing

1 2003(4) SCC 524

2 2011(1) ALD ]823

respondent to fix pay in the cadre of driver and to pay all the attendant benefits. To the same effect is the order in Writ Petition No.22269 of 2012 dated 25.09.2012. Aggrieved by the same, the Corporation filed Writ Appeal No. 739 of 2013 which was dismissed by order dated 25.06.2013. Challenging the same respondent Corporation filed SLP No (Civil) 1438 of 2014 before the Hon’ble Apex Court which dismissed the same by order dated 07.02.2014. The action of the Respondent in not fixing the pay in the cadre of driver and paying the salary from 12-01- 2012 to 22-05-2015 is illegal, arbitrary and unfair labour practice and the same is in contravention of Act 1/1996 and violation of fundamental rights guaranteed under the Constitution of India.

2. In the counter, the Corporation laid their case stating that petitioner was initially appointed as daily-wage driver and his services were regularized as Driver from 01.08.1900 at Mahabubabad Depot. When he was subjected to periodical medical examination, the Medical Officer, Warangal declared him unfit to the post of Driver in A1 Category due to ‘Colour Blindness’ vide MC No. 147277, dated. 02.01.2012. At his request, petitioner was examined at RTC Hospital, Tarnaka and was declared unfit for the said post due to ‘Defective distant Vision’ due to ‘REFRACTIVE ERROR’. Thereafter, on Application dated 19.06.2012, petitioner was r