APHC010342112005

IN THE HIGH COURT OF ANDHRA

PRADESH

AT AMARAVATI

(Special Original Jurisdiction)

[3365]

WEDNESDAY ,THE NINETEENTH DAY OF JUNE

TWO THOUSAND AND TWENTY FOUR

PRESENT

THE HONOURABLE JUSTICE DR V R K KRUPA SAGAR

WRIT PETITION NO: 18106/2005

Between:

K.A.H.D.V. Prasad S/o K. Kanaka Ratna Samba

Siva Rao

...PETITIONER

AND

Andhra Pradesh State Road Transport

Corporation and Others

...RESPONDENT(S)

Counsel for the Petitioner:

1. V PADMANABHA RAO

Counsel for the Respondent(S):

1. GP FOR SERVICES II (AP)

2. SOLOMON RAJU MANCHALAFOR (APSRTC)

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Dr. VRKS, J

W.P.No.18106 of 2005

SUBMITTED FOR APPROVAL :

THE HON’BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

1. Whether Reporters of Local Newspapers

may be allowed to see the Order? Yes/No

2. Whether the copy of Order may be

marked to Law Reporters/Journals? Yes/No

3. Whether His Lordship wish to Yes/No

see the fair copy of the Order?

______________________________

Dr. V.R.K.KRUPA SAGAR, J

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Dr. VRKS, J

W.P.No.18106 of 2005

* HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

+ WRIT PETITION NO: 18106/2005

% 19.06.2024

# Between:

K.A.H.D.V.Prasad ...PETITIONER(S)

AND

Andhra Pradesh State Road Transport

Corporation and Others

...RESPONDENT(S)

! Counsel for the Petitioner(s) : Sri V.Padmanabha Rao

^ Counsel for Respondent(S): Sri M.Solomon Raju,

Learned Standing Counsel

for APSRTC

< Gist:

> Head Note:

? Cases referred:

1. (2018) 12 SCC 704

2. 2003 LawSuit(SC) 172

3. 2022 (6) ALT 269 (AP)

The Court made the following:

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Dr. VRKS, J

W.P.No.18106 of 2005

THE HON’BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

WRIT PETITION No.18106 of 2005

ORDER:

If health fails an employee in service whether the law fails

him from service itself? The writ petitioner joined as a Casual

Driver in Andhra Pradesh State Road Transport Corporation

(APSRTC) during the year 1990. His services were regularized

from 01.08.1991. His services were confirmed from 01.08.1996.

During October, 2003 he experienced difficulty in his vision. Then

onwards he underwent medical examinations at APSRTC

Dispensary, Vidyadarapuram, Vijayawada and at Sarojini Devi

Eye Hospital, Hyderabad and he was diagnosed “RE

Pseudophakic RD”. There was surgical intervention on

16.03.2004. He was examined and treated at Tarnaka Hospital.

On multiple occasions he was examined by Medical Board. The

Medical Board found him unfit for A-1 category duties on

19.07.2005 because of his defective distant vision (right loss of

one eye). Consequently, on 27.07.2005 the APSRTC vide

proceedings No.E1/468(5)/05/VDP dated 27.07.2005 applying

Regulation No.6A(4) of APSRTC Emp loyees (Service)

Regulations, 1964 retired him from service of Corporation on

medical grounds with effect from 19.07.2005.

2. Since 07.06.2004 the writ petitioner has been making

representations seeking for alternative employment and his

representations to Regional Manager, APSRTC, Managing

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Dr. VRKS, J

W.P.No.18106 of 2005

Director, APSRTC, Transport Minister, Vice Chairman, APSRTC

did not yield any result. Finally, he was retired from service as

stated earlier. Explaining the difficulties he had undergone and

the large family he must maintain and the agony added by his

retirement he has filed this writ petition under Article 226 of the

Constitution of India with a prayer in the following terms:

“For the reasons stated in the accompanying

affidavit, it is prayed that this Hon’ble Court may be pleased

to issue an order, direction or Writ more particularly one in

the nature of Writ of Mandamus or any other appropriate writ

(i) declaring the Proceedings E1/468(5)/05/VDP, dated

27.7.2005 issued by the Depot Manager, Vidyadarapuram

Depot, Vijayawada that the petitioner is unfit for A-1

Category is illegal and arbitrary; (ii) declaring the action of

the respondents in not paying the salary from August, 2004

to till the date of retirement i.e., 19.7.2005 is illegal and

arbitrary; (iii) declare the action of the respondents in

dispensing with the services of the petitioner without

following Section 47 of Persons with Disabilities (Equal

Opportunities, Protection of Rights & Full Participation) Act,

1995 is illegal; and (iv) consequently direct the respondents

to provide alternate employment to the petitioner in the

same scale of pay with all consequential benefits and pass

such other order or orders as this Hon’ble Court may deem

fit and proper in the interest of justice.”

3. When this writ petition was filed in the year 2005, it was

only against respondent Nos.1 to 3. However, since 01.01.2020

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Dr. VRKS, J

W.P.No.18106 of 2005

as the APSRTC as well as its employees have been absorbed

into Government service, writ petitioner sought impleadment of

the State of Andhra Pradesh as respondent No.4 and in that

regard filed I.A.No.1 of 2023 and after due hearing the same was

allowed and accordingly respondent No.4 came on record.

4, On 17.08.2005 in W.P.M.P.No.23046 of 2005, this Court

passed the following interim order:

“Interim suspension of the impugned order with a

direction to the respondents to continue the petitioner in

any other alternative post to which he is eligible without

affecting monetary benefit.”

5. Sri V.Padmanabha Rao, the learned counsel for writ

petitioner and Sri M.Solomon Raju, the learned Standing Counsel

for APSRTC submitted arguments.

6. All the facts mentioned in the writ petition are not in dispute.

The fact that writ petitioner was a driver and as he suffered right

eye blindness, the employer retired him from service are all

matters of fact that are not in dispute.

7. The only question that falls for consideration is:

“Whether this disability that befell on the writ

petitioner should cost him his employment?”

8. Answer lies in Section 47 of the Persons with Disabilities

(Equal Opportunities, Protection of Rights and Full Participation)

Act, 1995 (for short, ‘the Act, 1995’). It is to be noticed that

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Dr. VRKS, J

W.P.No.18106 of 2005

subsequent to this enactment with the experience gained and the

knowledge acquired in handling the matters concerning disabled

the Parliament had passed the Rights of Persons with Disabilities

Act, 2016. Section 102 of the same repealed the Act, 1995 and

while doing so it provided a savings clause for the acts done

under the Act, 1995. The cause of concern involved in this writ

petition is governed by the legislation that was in force at that

time and that being the Act, 1995 the same has to be considered.

9. Section 47 of the Act, 1995 reads as below:

“47. Non-discrimination in Government employment:-

(1) No establishment shall dispense with, or reduce in

rank, an employee who acquires a disability during his

service:

Provided 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.

(2) No promotion shall be denied to a person merely on the

ground of his disability:

Provided that the appropriate Government may, having

regard to the type of work carried on in any establishment,

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Dr. VRKS, J

W.P.No.18106 of 2005

by notification and subject to such conditions, if any, as may

be specified in such notification, exempt any establishment

from the provisions of this section.”

10. From the above provision, one could see that an

establishment shall not dispense with an employee who acquires

a disability during his service. In the case at hand, writ petitioner

is an employee of APSRTC. He acquired disability during his

service. The mandate of the law is that his services shall not be

dispensed with on the ground that he acquired disability during

his service. The impugned order which retired him from service is

in straight violation of this principle.

11. Section 47 of the Act, 1995 referred above shows the

legislative mandate that if the employee after acquiring such

disability is found not suitable for the post he was holding he

could be shifted to some other post with the same pay scale and

service benefits. The writ petitioner herein was earlier driving

buses for respondent-Corporation and by losing his vision for the

right eye he acquired such disability that he could not be

permitted to drive buses. Therefore, he should be shifted to

some other post where he should be given work that is now

suitable and his pay scales and service benefits shall be

protected. It is for this reason, the writ petitioner has made

several representations to all the superior authorities. No

material is placed before this Court by the respondents as to what

had happened to those representations. Thus, there was total

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Dr. VRKS, J

W.P.No.18106 of 2005

inaction on part of the respondents for the representations that

were validly given under the statutory provisions.

12. Section 2(k) of the Act, 1995 defines the “establishment”

which reads as below:

“2(k): "establishment" means a corporation established by

or under a Central, Provincial or State Act, or an authority or

a body owned or controlled or aided by the Government or a

local authority or a Government company as defined in

section 617 of the Companies Act, 1956 (1 of 1956) and

includes Departments of a Government.”

13. It is undisputed before this Court that APSRTC is an

establishment falling within the above definition. The proviso

appended to Section 47 of the Act, 1995 is to the effect that

appropriate Government can by notification exempt any

establishment from the provisions of Section 47 of the Act, 1995.

Learned Standing Counsel for respondent Nos.1 to 3 did not

bring it to the notice of this Court that respondent-Corporation

was so exempted by any notification published by the

Government of Andhra Pradesh. Thus, it is clear that Section 47

of the Act, 1995 by full force apply to APSRTC and its employees.

14. Learned Standing Counsel for respondent Nos.1 to 3 prays

this Court that the facts on record are governed by the ratio laid

down by the Hon’ble Supreme Court of India in Andhra Pradesh

State Road Transport Corporation represented by its

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Dr. VRKS, J

W.P.No.18106 of 2005

Managing Director v. B.S. Reddy

1

. Section 2(i) of the Act, 1995

defines “disability”. Section 47 of the Act, 1995 employs the word

“disability”. Whether “disability” referred in Section 47 of the Act,

1995 covers a field different from a “disability” covered by Section

2(i) of the Act, 1995 was the matter for consideration in that case

before their Lordships. Having noticed the divergent views in this

regard on part of High Court of Delhi and High Court of Madras,

their Lordships concluded holding that “disability” in Section 47 of

the Act, 1995 should be understood only by applying the

definition of “disability” given in Section 2(i) of the Act, 1995.

Since that case pertains to APSRTC and their Lordships having

considered that there is a scheme for the purpose of disabled

available with Andhra Pradesh and Telangana Transport

Corporations, their Lordships were pleased to hold that even if a

particular disability is not covered by Section 2(i) of the Act, 1995,

if such a case is covered by what is provided in the scheme the

same can be applied. In other words, if the particular disability is

not covered by Section 2(i) of the Act, 1995, Section 47 of the

Act, 1995 could not be applied, however, if that particular

disability is covered by a provision in the scheme of the

Corporation, the Corporation is to apply the said benefit to its

employees.

15. In the case at hand, the above cited ruling has no

purposeful reference. It is so for the following reasons:

Section 2(i) of the Act, 1995 says “disability” means:-

1

(2018) 12 SCC 704

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Dr. VRKS, J

W.P.No.18106 of 2005

(i) blindness;

(ii) low vision;

(iii) leprosy-cured;

(iv) hearing impairment;

(v) locomotor disability;

(vi) mental retardation;

(vii) mental illness

Section 2(b) of the Act, 1995 reads as below:-

"blindness" refers to a condition where a person suffers from

any of the following conditions, namely:-

(i) total absence of sight; or

(ii) visual acuity not exceeding 6/60 or 20/200 (snellen) in the

better eye with correcting lenses; or

(iii) limitation of the field of vision subtending an angle of 20

degree or worse.

16. In the case at hand, the impugned order of retirement itself

mentions loss of one eye and thus, it is a clear case of blindness.

Thus, it is a disability falling within Section 2(i) of the Act, 1995

and thereby inviting the application of Section 47 of the Act, 1995.

Therefore, the principle laid down in the ruling cited above stands

satisfied to the case at hand. That the principles contained in

Section 47 of the Act, 1995 require their application and the need

for scrupulous compliance have been matters of decision of

Constitutional Courts. Sri V.Padmanabha Rao, the learned

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Dr. VRKS, J

W.P.No.18106 of 2005

counsel for petitioner rightly cited Kunal Singh v. Union of India

2

and Ch.S.Rajeswara Rao v. Government of A.P.rep. by

Principal Secretary, Transports Department

3

.

17. What is mentioned above makes it clear that the blindness

suffered by writ petitioner cannot cost him his employment and

respondent-Corporation was bound to employee him and its order

of retirement is against the law and must be set aside.

18. The affidavit of the petitioner mentions certain details and

they remain undisputed. It is clearly seen that from August 2004

to 19.07.2005 (date of retirement on medical grounds) the writ

petitioner was not paid his salary. Since he could not be retired

from service at all, his employer was bound to pay salary to him

during that period. In fact that has been the principle laid down

by this Court in the above referred Ch.S.Rajeswara Rao’s case

(supra 3). Hence, the point is answered accordingly.

19. In the result, this Writ Petition is allowed. Respondents are

directed to pay full salary for the petitioner for the period with

effect from August, 2004 to 19.07.2005 in the time scale of pay in

which he was there by then. The arrears shall be paid within a

period of two (2) months from the date of production of a copy of

this order before the respondents. Retirement of the writ

petitioner made by the respondents vide Proceedings No.E1/

468(5)/05/PDP, dated 27.07.2005 is set aside. Consequently,

respondents are directed to provide alternate employment to the

2

2003 LawSuit(SC) 172

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W.P.No.18106 of 2005

writ petitioner with protection of his scale of pay and all

consequential benefits. He shall be reinstated into service

forthwith on production of a copy of this order, if not already done.

There shall be no order as to costs.

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

________________________

Dr. V.R.K.KRUPA SAGAR, J

Date: 19.06.2024

Note: LR Copy to be marked

(B/o)

Ivd

3

2022 (6) ALT 269 (AP)

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Dr. VRKS, J

W.P.No.18106 of 2005

THE HON’BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

WRIT PETITION No.18106 of 2005

Date: 19.06.2024

Ivd