IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH TUESDAY THIS THE EIGHTH DAY OF JULY TWO THOUSAND AND FOURTEEN PRESENT THE HON'BLE SRI JUSTICE R.KANTHA RAO WRIT PETITION No.15520 of 2014 Between: K.Sailu . PETITIONER And The A.P.State Road Transport Corporation, rep.by its Managing Director, Musheerabad, Hyderabad and 2 others . RESPONDENTS The Court made the following:
THE HON’BLE SRI JUSTICE R.KANTHA RAO WRIT PETITION No.15520 of 2014
ORDER:
Heard the learned counsel appearing for the petitioner and the learned standing counsel appearing for the respondents.
This writ petition is filed under Article 226 of the Constitution of India seeking a Writ of Mandamus, declaring the action of the respondents in not paying the salaries to the petitioner from 27.07.2010 to 06.01.2011 and fixing the pay of the petitioner in the cadre of driver as illegal, arbitrary and contrary to the APSRTC Service Regulations and the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Partition) Act, 1995 (Act 1 of 1996) (hereinafter referred to as “the Act”).
The brief facts of the case necessary for considering the writ petition may be stated as follows:
While the petitioner was working as driver in the respondent Corporation, he was sent for periodical medical examination to the Corporation Hospital at Tarnaka and after examination, he was found unfit to the post of driver as he suffered from defective distant vision and accordingly a medical certificate was issued on 27.07.2010. Thereafter, the respondents provided alternative employment to the petitioner and appointed him as Shramik vide proceedings dated 06.01.2011. The grievance of the petitioner is that as per Section 47 of the Act he shall not be reduced in the rank on the ground that he acquired disability during the service and his pay shall be protected. The petitioner was working as Gr.I driver and he claims that notwithstanding the fact that he was given alternative employment of Shramik on account of sustaining disability, his salary shall be fixed in the pay scale of driver Gr.I, but the respondents fixed his pay scale in the cadre of Shramik by proceedings dated 06.01.2011 which according to him is illegal and contrary to the provisions of the Act.
The respondents filed counter contending inter alia that the petitioner did not obtain certificate from the Medical Board constituted under the Act and further contending that as the petitioner worked for a considerable period in the Corporation, he has sufficient leave balance to his credit and such leave shall be debited for payment of salary during the interregnum period as per Regulation-14 of the Leave Regulations of the Corporation. Contending as such, the respondents sought to dismiss the writ petition.
Identical issue involved in the present writ petition arose for consideration in W.P.No.22269/2012 and the learned single Judge of this Court allowed the said writ petition holding that denying the salary of the petitioner therein and attendant benefits for the period that he was kept out of service and adjusting his leave in this regard cannot be countenanced. The petitioner therein therefore was treated as ‘on duty’ for the period mentioned therein for all purposes and a direction was issued to pay full salary and attendant benefits for the said period. The leave of the petitioner therein which was adjusted by the Corporation was directed to be credited to his leave account. Aggrieved by the same, the Corporation moved appeal in W.A.No.739/2013 and the same was dismissed confirming the order of the learned single Judge.
The contention raised by the respondent corporation that as the medical certificate of the petitioner was not issued by the Medical Board constituted under the Act the petitioner is not entitled to claim salary for interregnum period cannot be accepted, since the Corporation has its own machinery and mechanism for evaluation of the physical and mental fitness of its employees, moreover, the said certificate was issued by the Corporation Hospital at Tarnaka.
In view of the above, the period during which the petitioner was kept out of service due to his disability has to be treated as the period ‘on duty’ and he is entitled for the relief prayed for in the present writ petition.
The Writ Petition is accordingly allowed. The respondents are directed to pay salary to the petitioner for the period from 27.07.2010 to 06.01.2011 and fix his scale of pay in the cadre of driver, within a period of 6 (six) weeks from the date of receipt of a copy of this order. In the circumstances, there shall be no order as to costs.
Pending miscellaneous petitions, if any, shall stand closed in consequence.
R.KANTHA RAO,J Date: 08.07.2014 Dsr