Ram Kishan vs Delhi Transport Corporation

V. Ajay Kumar, J

The applicant, a Driver in the respondent-Delhi Transport Corporation (DTC), filed the OA questioning the Annexure A-1 order dated 05.03.2014 whereunder he was retired from service with effect from 30.06.2014, in pursuance of a report dated 05.08.2011 of the DTC Medical Board, by which he was declared medically unfit.

Brief facts of the case are that the applicant was appointed as a Driver on 27.02.1982 on regular basis. His date of birth is 26.06.1959. By an order dated 30.06.1998, the respondent-DTC enhanced the age of retirement of its employees from 58 years to 60 years with effect from 27.05.1998. The Drivers of the respondent-DTC were also given this benefit subject to their being found fit in every respect after a thorough medical examination by the Medical Board after they had attained the age of 55 years. In case, if a Driver is found unfit, he would stand retired from service at the age of 55 years, as per the said order dated 30.06.1998.

The applicant received an injury in his left eye because of which he lost his sight in his left eye and was accordingly declared medically unfit for the post of Driver. However, in terms of Section 47 of the Persons with Disabilities Act, 1995, the applicant was appointed as a Security Guard vide order dated 09.08.2011 and was paid the same pay scale and service benefits as admissible to a Driver and was continued as such, till he attained the age of 55 years and was finally retired from service vide Annexure A-1 order dated 05.03.2014 with effect from 30.06.2014, i.e., on completion of 55 years.

The applicant submits that the age of retirement of a Security Guard is 60 years and once he was appointed as a Security Guard in terms of Section 47 of the Persons with Disabilities Act, 1995, he should be continued till he attained the age of 60 years and cannot be retired on completion of 55 years by treating him as Driver.

Heard Ms. Komal Aggarwal for Shri Anil Mittal, learned counsel for the applicant and Ms. Mona Sinha for Ms. Ruchira Gupta, learned counsel for the respondents and perused the pleadings on record.

The issue fell for consideration in the instant OA is, whether, the workmen/drivers who retired prematurely from services of the management from the post of driver on having incurred physical disability before reaching the age of superannuation at 55 years, but retained in service till that age, on account of the benefits made available to them by Section 47 of the Disabilities Act by assigning them either a lower post or otherwise with the pay and allowances as admissible to a driver are also entitled to superannuate at the age of 60 years as a matter of right despite being unfit to act as a driver after the age of superannuation by claiming parity with other employees of the Corporation who retires at 60 years.

As rightly submitted by the learned counsel for the respondents, the issue on hand is squarely covered by a decision of the Hon'ble High Court of Delhi in Delhi Transport Corporation Vs. Dharam Pal (Ex.Driver), 160 (2009) Delhi Law Times 555 (DB). The relevant paragraphs of the said judgment read as under:-

"18. In the light of the aforesaid observations of the division bench, the submission of the workmen/drivers that Section 47 of the disability act being a welfare legislation extends the age of their superannuation up to 60 years or in the alternative having been appointed to a lower post on account of benefits extended under section 47 of the Disabilities Act which post carries the age of retirement as 60 years, they should also be retired at the age of 60 years is again unacceptable for the simple reason that the drivers joins the Corporation as drivers and were supposed to perform the duties as drivers till the age of 55 years. As a matter of policy keeping a lower age of retirement for posts like that of a driver cannot be faulted and being a matter of policy cannot even otherwise be interfered with by this court. Moreover it is on account of the disability incurred by them before reaching the age of superannuation, i.e., 55 years which would have enabled the management to turn them out of service by retiring them prematurely but which could not be done because of coming into force of the Disability Act, which confers the benefit of retention in service may be at a lower post or by providing them salary till the age of their superannuation. However this does not in any way entitles them to have another 5 years of service having originally agreed for the retirement at the age of 55 years, being a driver. The benefit of extension as is being conferred by the office order issued by the Management is only an enabling provision in the case of drivers who are fit to be retained in service and does not ipso facto increases the age of superannuation. In fact accepting the contentions of the drivers would be putting premium to their disability which is not the mandate of the Disability Act.

There is merit in the submission of the management that sub Section 1 of Section 47 of the Disabilities Act clearly indicates that the benefits will be available to the employees till he attains the age of superannuation. The said Act does not add any additional benefit to a person who has suffered accident for Continuance in service beyond the age of 55 years because of his being medically unfit on reaching that age as he cannot steal advantage over other persons because of his disability. The fact is that whilst an employee would be entitled for payment in the pay scale and would receive service benefits of a driver till he is superannuated irrespective of the fact whether he is medically fit or not, but he will have to retire once he attains the age of 55 years. Thereafter he cannot say that on account of provisions contained under Section 47 of the Disabilities Act he is entitled to continue in service up to 60 years as is being pleaded because this is not the mandate of Section 47 of the Disabilities Act.

Thus we are of the considered opinion that there is nothing in the Disability Act which permits extension of the service of an employee. The protection afforded under Section 47 is to an employee who incurs a disability during the period of his service which certainly means from the date of recruitment and the date of superannuation. If the date of superannuation is 55 years which is extendable on year to year basis subject to medical fitness it cannot be said that service of the employees must be extended on account of the provisions of the aforesaid Act even if he is unfit for the Job i.e. to act as a driver.

It is no doubt true that the provisions under Section 47 forms part of a welfare legislation. However, the provisions cannot be interpreted in a manner which is not permissible by the Rules or the interpretation or which extends the provisions of the Act in a territory which is not permissible in law. Applying the aforesaid principles to section 47 of the Disabilities Act, in the context of regulation 10 of the service regulations governing the age of superannuation of the drivers in accordance with the office order No. 99/63 of 4.10.1963, it cannot be said that the age of superannuation of the drivers is 60 years. The benefit of extension is only to extend the services of those drivers, who otherwise retire at the age of 55 years but can act as a driver subject to their medical fitness on year to year basis which initially could have been up to 58 years and now up to 60 years. Such a situation is possible in the case of a driver whose disability incurred earlier may have been cured by the lapse of time. Looking to the nature of job which a driver is to perform by plying heavy vehicles like a bus which carries number of passengers, the benefit of extension is a beneficial provision taken by the management suo moto but this cannot be availed as a matter of right by the drivers who have to retire at the age of 55 years and are not medically fit to drive further. No case has been brought to our notice of discrimination in this regard. The provision is applied in general and not by way of exception, as is the case of the Management. Keeping a lower retiring age for such an strenuous job cannot be termed as either arbitrary or illegal. Hence we answer all the three questions as framed in para one above against the workmen and in favor of the management. Now we shall consider each of the cases separately:".

A Coordinate Bench of this Tribunal in OA No. 2397/2011, dated 04.01.2012 in Ganga Prasad Vs. DTC, following the decision in Dharampal (supra), dismissed the OA, in identical circumstances.

In the circumstances and in view of the categorical declaration of law by the Hon'ble High Court of Delhi in an identical case, the OA lacks any merit and accordingly, the same is dismissed. No costs.