Dismissed

Abdul Hakeem,Nizamabad Dist v. Apsrtc,Md,Hyd,and 2

Telangana HC13 Mar 2023WP/1716/2013

Case brief

AI extract

What is this about?

The High Court of Telangana dismissed a writ petition challenging the petitioner's reassignment from Driver to Shramik without additional pay. The Court held that Section 47 of the Persons with Disabilities Act, 1995, applies only to those covered under Section 2(i) definition, and dismissed the petition as lacking merit after application of relevant Supreme Court precedents. Pay protection was no

What did the court decide?

Writ petition dismissed. Pay protection continued as per corporation's stand.

Abdul Hakeem,Nizamabad Dist Vs… — Pension and Retirement Benefits | Telangana HC (2023)

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t3167 1

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction)

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MONDAY, THE THIRTEENTH DAY OF MARCH TWO THOUSAND AND TWENTY THREE

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PRESENT

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THE HONOURABLE SRI .'USTICE A. ABHISHEK REDDY

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Between:

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Abdul Hakeem, S/o Abdul Rahaman, Aged about 50 years, Occ: Shramik, R/o Bichkunda village and Mandal, Nizamabad District.

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.PETITIONER

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AND

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The APSRTC, Rep.by its Managing Director, Musheerabad, Hyderabad.

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The Regional Manager, APSRTC, Nizamabad Region, Nizamabad District.

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The Depot Manager, APSRTC, Banswada Depot, Banswada, Nizamabad District

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...RESPONDENTS

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Petition under Article 226 of the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue an appropriate writ, order or direction more particularly one in the nature of wRlr oF MANDAMUS declaring the proceedings No. E21255(1)/11-RM: NZB dated 11-7-2011 of the 2nd Respondent in fixing the pay of the petitioner in the category of Sramik and not paying the salary from November,2010 to July, 2011 to the petitioner is illegal, arbitrary and contrary to the A.P.S.R.T.C. Service Regulations, the provisions of Act, 1 of 1996 the persons with Disabilities (Equal, Opportunities, Protection of Rights and Full Partition )Act, 1995 and as well violation of Fundamental Rights guaranteed under the constitution of lndia and set aside the same and consequently direct the respondents to fix the pay in the cadre of Graded Driver and pay the salary from November, 2O1O to July, 2011 and all other attendant benefits and arrears thereof to the petitioner

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to direct the respondents to fix the pay in the cadre of Grade.l Driver and pay the

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salary from^{November, 2O1O to July,2O11 an.!.arrears thereof to the petitioner} iortnwitn^{pendingdisposal of the main Writ petition'}

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Between

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The^{APSRTC, Rep.by its ManagingDirector' Musheerabad'Hyderabad'}

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The^{Regional Manager,APSRTC, Nizamabad Region, Nizamabad District'}

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3.TheDepotManager,APSRTC,BanswadaDepot,Banswada,Nizamabad District

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...PETITIONERS'RESPONDENTS

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AND

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vears'^{occ: shramik'R/o} Abdul Hakee.m,^{s/o Abdul} Bal'qTahlS:j 3?r?Hlft iifunrt'nou^{village and Mandal' Niza}

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...REspoNDENT/wRrr 'ET*.NER

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Petition^{under section151 CPCpraying- that in the circumstancesstated} in the affidavit^{filed in supportot tne n"htioL ih" Higft Court may be pleased to} vacate the^{interim oroer dated io-oz-zots in w'p'nll'P'No'2086 of 2013 in} W.P.No.1716^{of 2013'}

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Counsel^{for the Petitioner: SRI A' JAGAN}

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counsel^{for the Respondents:SRI A. SRINIVAS REDDY (sc FoRTSRTC)}

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The Gourt^{made the following: ORDER}

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, THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY ' trIRIT PETITION Ito.1?16 of 2O13

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ORDER:

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Aggrieved by the action of respondent No.2 in issuing proceedings No.E21255(1)/ 1 1-RM:NZB dated ll.O7 .2011 in fixing the pay of the petitioner in the cei.tegory of Shramik and not paying the salary from November, 2OLO to July, 2OL1, tlne present writ petition is filed.

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The case of the petitioner is that he was appointed as a .^{Driver in the respondentcorporationin the year 1986.} while so, in the year 2o1o, the respondents have sent the petitioner No.l for periodical medical examination to the respondent "^{Hospital at Tarnaka; where,after examination} he was declared unfit to the post of Driver through medical certificate dated 09.11.2010. subsequently, the petitioner was arso referred for ' further medrcal examination to the Medical Board, Tarnaka Hospital, Hyderabad., where also after examination, the Doctors of the Medical Board have held that petitioner was unfit to the post of Driver vide proceedings dated 21.o2.2oll. Thereafter, the petitioner was provided an alternative employment as a sramik and posted at Kamareddy depot uide proceedings dated 11.07-2011, however, without extending the pay protection in the cadre of Driver and also without payrng salar5r from

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2 AAR, J wP 1716 2013

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November, 2OlO, to July, 2011. Questioning the same, the present writ petition is filed.

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This Court while admitting the writ petition on 2O.O2.2OL3 has issued interim direction to the respondents to fix the pay in the cadre of Grade-I Driver and pay the salary from November, 2OlO, to July, 2}ll, and arrears thereof.

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A counter affidavit has been filed mainly stating that the petitioner was offered alternative employment. of Shramik w.e.f. 17.O7.2011 subject to certain terms and conditions as per Circular No.PD- L6 /2OO8, dated 25.O2.2OO8, and PD=O9 /2OOg dated O4.O3.2OO}. His pay and allowances, scale was regulated according to the instructions in force, for which the petitioner has opted. His pay was protected while fixing in the Shramik scale from 09.i1.2010 and he was paid alt eligible wages duty along with leaves to his credit from the date of being declared as unfit i.e. O9.IL.2O1O to the date of reporting at Kamareddy depot on 18.O7.2OtL It is further stated that the interregnum period from the date the employee is declared trnfit, by the Medical Officer, till the date he is declared trnfit,or^.fit, by the Medical Board, will be treated aS leave due to him. The employees who work in the corporation for considerable period will have sufficient leave baiances to their credit and such leaves will be debited for payment of salary, during the interregnum period. It is further averred that the services of the

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AAR, J wP_1716_2013

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petitioner are not dispensed with and has been kept under Medical observation and therefore Section 47 of^{the Persons} with Disabilities (Equal Opportunities,^Protection of^{Rights and} Full Participa.tion) Act, 1995 (in short '1995 AtJ, is^not applicable to the case of the petitioner. Hence, it is^{prayed to} dismiss the writ petition.

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An additional counter affidavit has also been filed by the respondent Corporation mainly stating that the pay of the petitioner in the cadre of Driver has been protected. It is stated that the petitioner was drawing the gross salary of Rs.18,387 / - in the post of Driver whereas in the alternative emplo5rment as Shramik his gross salary in the month of Noveriber, 2OL1 was Rs.19,483/-. Thus, there was no reduction either in the basic pay or gross salary in the post of Shramik. It is further stated that the petitioner was provided alternative emplo5rment as Shramik vide office order dated LL.O7.2O11 and he reported for the duty at Kamareddy Depot on 18.07.2011 and since then he had been paid the salary. Therefore, it is prayed to dismiss the Writ Petition.

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Heard Sri A. Jagan, learned counsel for the petitioner, and Sri Thoom Srinivas, learned Standing Counsel for the respondent- Corporation.

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Learned counsel for the petitioner has stated that as per the provisions of the 1995 Act, more specifically Section 47 (Ll

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AAR, J 4 wP_1716_2013

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thereof, the petitioner is entitled to the^{pay protection.Learned} counsel has stated that due to the disability declared^{by the} Superintend.ent, APSRTC Hospital, Tarnaka, the^{petitionerwas} . declared trnfit' to be a driver on the ground that he^{had a} defective distant vision on left eye.^Thereafter, on^the representation of the petitioner, the^{respondent Corporation has} issued the proceedings No.E21255(1)/^{11-RM:NZB, dated} LL.O7.2OI1 appointing the^petitioner as^{a Shramik inX-2} category. Learned counsel^has further^{stated that the protection} . gf pay, which has been contemplated under^{Section47 (Ll of the} 1995 Act has not been extended to^{the petitioner.Learned} counsel has placed reliance on^{the order dated02.11.2012} passed by a learned single Judge of this Court^{in W.P.No.29583} of 2012 in support of his case and^prayed. to^{allow the writ} petition.

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Per contra, the learned Standing counsel for^the respondent Corporation has vehemently opposed the^very maintainability of the writ petition and stated that the^petitioner does not fall within the definition of 'disability' defined^under Section 2 (11 ofthe 1995 Act. Learned counsel has^statedthat for extending the protection of pay enumerated under Section 47 (L) of the 1995 Act a person who is having disability has to fit into the category mentioned in 2 (i). Learned counsel has relied on the unreported judgment of Honble Supreme Court in Civil

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Appeal No.3529 of 2077 & batch, dated 23.02.2017, and the unreported common^judgment dated 25.03.2022^{rendered by} the Division Bench of this Court in Writ Appeal Nos.196 of 2Ol7 and batch.

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Perused the material on record.

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It is pertinent to note that even though the respondentCorporation has taken a specific stand, both in the counter affidavit as well as the additional counter aflidavit, that pay protection has been given to the petitioner, the petitioner has not bothered to file any reply denyrng that pay protectign has not been extended to him.

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Further, the Hon'ble Supreme Court while dealing with Civil Appeal^-No.35 29 of 2017 & batch, emanating from this Court, has held, vide order, dated 23.02.2017, as under:

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"...We are unable to subscribe to the view taken by the Madras High Court which has been followed in the impugned order and approve the view taken by the High Court of Delhi in Hawa Singh v. Delhi Transport Corporation & Airport Authority of India v. Kumar Bharat Prasad Narain Singh. We do not find any reason to hold that expression "disability" in Section 47 of the Act is used in a different context so as not to go by the definition given in Section 2 (il of the Act. We also note that even though Section 2 (i) of the Act may not cover every disabled, scheme of the Andhra Pradesh and Telangana Transport Corporations covers even those employees who are not covered by Section 2

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AAR, J wP_1716_2013

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(i) of the Act. Thus, those who are^{disabled within} the meaning of Section 2^{(i) of the Act are not} without any benefit^{whatsoever.They are, thus,} entitled to invoke^{suchschemes but not Section47} of the Act.

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In view of above,^we allow^{these appealsin above} terms and hold that^{the benefit of Section47 of t]ne} Act will be available^{only to those who are covered} by Section 2(i) of the^Act....-'

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Following the said^{ratio, a Division Bench of this court} has disposed of writ^{AppealNos.38O of 2Ol7 and batch uidg} common^{judgment,dated05.06.2017, holdingas under:}

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"Following the^{order of the Supreme Court, in} Civil Appeal No.3529 of^{2Ol7 and batchdated} 23.O2.2OL7, these^{Writ Appeals are also disposed} of holding that the^{benefit of Section 47 of the Act} shall be available^{onlyto thosewho are coveredby} the disabilities specified^{in Section 2 (i) of the Act;} it is open to the appellant-Corporation^{to takea} decision, on individual^{grievances ofthe} respondent-writ^{petitioners,with utmostexpedition} preferably within three months from^{the date of} receipt of a copy of the order;^{and the respondent-} writ petitioners are at liberty^{thereafter to avail} their remedies in terms of the^{judgmentof the} Supreme Court..."

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The common^judgment dated 05.06.2017 has also been followed by another Division Bench of this Court in Writ Appeal Nos.196 of 201.7 & batch dated 25.05.2022.

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7 AAR, J wP_1716_2013

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Having regard to ratio laid down by the Honble Supreme Court in the judgment dated 23.02.2017 in Civil Appeal .^{No.3529 of 2Dl7 & batch, followed by the Division Benchesof} this Court in Writ Appeal Nos.380 of 2OLZ and batch uide common judgment, dated 05.06.2017, x.d, common judgment . dated 25.03.2022 passed in Writ Appeal Nos.196 of 2OtZ & batch, this Court does not see any merit to grant the prayer sought in the present Writ Petition.

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. Accordingly, the Writ Petition is dismissed. Having regard to the fact^'that in the counter filed by the respondent Corporation a specific stand has been taken that the pay - protection has been granted by the corporation.while providing alternative employment to the petitioner as shramik, the said protection shall continue. However, in case the petitioner is still having any grievance with regard to his pay fixation, it is open to the petitioner to avail the remedies available, if any settlement has been reached by the Corporation and the Employees' Union under the Industrial Disputes Act, lg4.

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Miscellaneous petitions pending, if &fly, shall stand

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closed. No costs.

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HIGH COURT