(Prayer: Writ Appeal under clause 15 of the Letters Patent present this memorandum of Writ Appeal against the Judgment, dated 19.06.2024 in W.P. No. 8912 of 2024 passed by this Hon'ble Court for the following among other grounds)

IA NO: 1 OF 2025

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 pleased to condone the delay of 93 days is filing the writ appeal against the order dated 19.06.2024 in W.P. No. 8912/2024 and pass

IA NO: 2 OF 2025

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 pleased to suspend the operation of order passed in W.P. No. 8912/2024 dated 19.06.2024 pending disposal of writ appeal and pass)

A. Hari Haranadha Sarma, J.

Introductory:

1. This Writ Appeal is filed questioning the order dated 19.06.2024 passed by the learned Single Judge of this Court in W.P.No.8912 of 2024.

2. The appellants herein were respondent Nos.2 to 4 in the writ petition. Respondent No.1 herein is the writ petitioner. Respondent No.2 herein is respondent No.1 in the writ petition.

3. For the sake of convenience, parties will be hereinafter referred to as the petitioner and the respondents, as and how they are arrayed in the impugned order.

4. The writ petition was filed seeking order or direction more particularly one in the nature of Writ of Mandamus to declare the proceedings of the 3rd respondent passed in No.L1/876(01)/2024-RM(T), dated 29.02.2024 as erroneous & arbitrary and violative of Articles 14, 21 & 311 of the Constitution of India besides being violative of principles of natural justice and consequently set aside the same. In the said proceedings, the request of the petitioner for alternative employment as Sramik, Kalsai or in any other class IV post under office side was rejected.

Case of the writ petitioner / respondent No.1 herein:

5(i). The writ petitioner was appointed as a Driver and while working at Srikalahasti Depot, he was declared medically unfit for the post of Driver in A1 category and also unfit for all categories as per the medical standards of APSRTC, due to Post Traumatic Left Acetabular Fracture Displaced Femoral Head and Right Brachial Plexus Neuropraxia Nerve injury.

                  (ii). In view of the becoming medically unfit, the writ petitioner was retired from the services of Corporation on medical grounds in terms of Regulation 6A(5)(b) of the APSRTC Employees (Service) Regulations, 1964 vide order dated 21.08.2017. Thereafter, the authorities paid the retirement benefits along with additional monetary benefits on 18.06.2018 in lieu of alternative employment.

                  (iii). Thereafter, again the writ petitioner approached the APSRTC authorities on several occasions and requested them to consider his case on humanitarian grounds and to appoint him in any suitable post based on his qualifications. But, the authorities rejected his request vide proceedings dated 29.02.2024.

                  (iv). Writ Petitioner claims that the Hon’ble Composite High Court of A.P. in W.P.No.36337 of 2015 and batch, dated 29.01.2016, reported in 2016 (3) ALT 141, held that drivers who were declared as medically unfit are entitled to pay and allowance attached to the post of Driver until they are retired or provided with alternative employment.

                  (v). Further contention of the writ petitioner is that under the Persons with Disabilities Act, 1995 and Section 20 of the Rights of Persons with Disabilities Act, 2016, a medically de-categorized employee is entitled to be provided with alternative employment in a suitable post without monetary loss.

                  (vi). The writ petitioner also contended that termination or retirement on medical grounds requires due care and sensitivity and that denial of alternative employment violates the statutory mandate.

                  (vii). The writ petitioner stated that if alternate employment is offered by APSRTC, he would return a sum of Rs.4,00,000/- together with interest at 6% per annum within two months. He further stated that he is capable of performing duties as Assistant Mechanic or Sramik or Painter Assistant or Electric Assistant or Oil Top-Up Assistant or Office Boy or Attender or Store Attender or Coffee & Tea Maker or Supplier or Vessels Cleaner or Lab Attender or any other suitable post as provided by the Corporation.

                  (viii). Pursuant to the opinion given by the Regional Medical Board, SVRRGG Hospital, Tiruapati, the writ petitioner submitted a representation dated 01.08.2024 with fitness requesting alternative employment by taking into consideration the medical opinion dated 19.07.2024, which was communicated to him on 24.07.2024.

The contention of the respondents (appellants) before the learned Single Judge:

6(i). The writ petitioner was directed for medical examination on 08.06.2017 found medically unfit for the post of Driver in A1 category vide Medical Certificate No.273164, dated 14.06.2017.

                  (ii). The writ petitioner preferred an appeal against the order issued by the Medical Officer to the Medical Board, APSRTC Central Hospital, Vidyadharapuram, Vijayawada. Accordingly, the medical board examined and found the writ petitioner as unfit for the post of driver in A1 category and also unfit for all other alternative categories as per the Medical Standards of APSRTC due to Post Traumatic Left Acetabular Fracture Displaced Femoral Head and Right Brachial Plexus Neuropraxia Nerve injury.

                  (iii). Petitioner was retired from the services of the Corporation in terms of Regulation 6(A) 5(b) of APSRTC Employees (Service) Regulations, 1994 vide orders dated 21.08.2017.

                  (iv). Additional Monetary Benefits was paid on 18.06.2018 in lieu of alternative employment.

                  (v). The medical condition under which the petitioner was retired viz. Post Traumatic Left Acetabular Fracture Displaced Femoral Head and Right Brachial Plexus Neuropraxia Nerve injury does not come under the definition as prescribed under Section 2(i) of the Persons with Disabilities Act 1995 or with the new act of the Rights of Persons with Disabilities Act, 2016.

                  (vi). As per the ratio laid down by the Hon’ble Apex Court the petitioner is not entitled for the benefits prescribed under Section 47 of the Rights of the Persons with Disabilities Act, 1995 or Section 20 of the Rights of the Persons with Disabilities Act, 2016.

                  (vii). Further, in Civil Appeal Nos.3529 of 2017 and a batch of 84 Civil Appeals, the Hon’ble Apex Court vide orders dated 23.02.2017 examined the scope of disability and held as follows:

                  "We are unable to subscribe to the view taken by the Madras High Court which has been followed in the impugned order approve the view taken by the High court of Delhi in Hawa Singh Vs. 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 delinilion given in Section 2(i) 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(i) of the Act. Thus, those who are disabled within the meaning of Section 2(i) are not without any benefit whatsoever. They are, thus, entitled to invoke such schemes but not Section 47 of the Act.

Findings of the learned Single Judge:

7(i). The acceptance of additional monetary benefits by the Writ Petitioner was not voluntarily as the circumstances indicated that the Writ Petitioner was made to believe that his Disability was permanent and that he was not suitable for alternate employment.

                  (ii). The letter dated 08.06.2017 was not written by the Writ Petitioner in his own handwriting.

                  (iii). The respondent-Corporation failed to follow the mandate prescribed under Section 20(4) of the Rights of Persons with Disabilities Act, 2016 and that the medical evaluation conducted by the Corporation did not conform to the statutory requirements.

                  (iv). The Writ Petitioner is entitled for consideration of alternative appointment by conducting a fresh medical evaluation.

Arguments in the appeal:

For the appellants:

8(i). The order of the learned Single Judge is contrary to law, evidence and probabilities of the case.

                  (ii). As per Regulation 6A(5)(b) of the A.P.S.R.T.C . Employees (Service) Regulations 1964, Respondent No.1 / the writ petitioner was retired vide orders dated 21.08.2017. Therefore, the said order has become final.

                  (iii). Having accepted additional monetary benefits in lieu of alternative employment, the writ petitioner cannot seek reconsideration after a lapse of nearly six years based on a subsequent medical certificate.

                  (iv). The learned Single Judge failed to appreciate that the Hon’ble Apex Court in Civil Appeal Nos.3529 of 2017 and batch, dated 23.02.2017, examined the scope of disability and held that benefit under Section 47 of the Act are available only to persons covered under Section 2(i) of the Act.

                  (v). The writ petitioner is not entitled to benefits under either the 1995 Act or the 2016 Act, and he was paid benefits strictly in accordance with APSRTC regulations.

                  (vi). The writ petition suffers from delay and laches, as the writ petitioner approached the Court after several years without explaining the delay.

                  (vii). The writ petitioner did not challenge the retirement order dated 21.08.2017 and therefore the writ petition itself is not maintainable.

9. Arguments are submitted reiterating the respective contentions.

10. Now the points that arise for determination are:

                  1). Whether the orders of the learned Single Judge dated 19.06.2024 are sustainable or require any interference?

                  2). What is the result of the appeal?

Point No.1:

Analysis, reasoning and findings:

11. While considering the core question raised, whether the authorities had properly followed the procedure while assessing the disability and whether the acceptance of retirement and monetary benefits in lieu of alternate employment was properly done and whether the writ petitioner had accepted the same under unequal bargaining conditions, the learned Single Judge extensively addressed all the issues. The provisions of the Rights of the Persons with Disability Act, 2016 as well as the benchmark of disability, etc., and the precedents vide para Nos.13 to 21 of the judgment.

12. The learned Single Judge issued the following directions in paragraph No.23 of the judgment.

                  23. DIRECTIONS:

                  Under these circumstances, this Court would deem it appropriate to allow this Writ Petition and refer the Writ Petitioner to the Sri Venkateswara Ramnarayan Ruia Government General Hospital, Tirupathi (Ruia Hospital, Tirupathi) for fresh evaluation. The Superintendent of the Hospital, having administrative superintendence, is directed to constitute a Medical Board within two weeks from the date of receipt of this Order, to examine whether the Writ Petitioner is suitable for any alternate employment in the Respondent Corporation. After such examination, the opinion of the Medical Board shall be communicated to the Writ Petitioner and also to the Respondent Nos.2 to 4 within two (02) weeks by the Superintendent of Sri Venkateswara Ramnarayan Ruia Government General Hospital, Tirupathi (Ruia Hospital, Tirupathi). If the Medical Board finds the Writ Petitioner fit for any alternate employment, the Respondent Corporation shall consider the case of the Writ Petitioner in terms of the opinion given by the Medical Board by providing suitable employment and consequently accept the return of Rs.4,00,000/- with 6% simple interest per annum from the Writ Petitioner within two (02) months from the date of his appointment; or, in the alternative, the Respondent Corporation may also deduct reasonable amounts from the future salary of the Writ Petitioner as Equated Monthly Instalments (EMIs). Such alternate employment shall be provided by the Respondent Nos.2 to 4 within four (04) weeks from the date of receipt of the Medical opinion from the Superintendent of Sri Venkateswara Ramnarayan Ruia Government General Hospital, Tirupathi (Ruia Hospital, Tirupathi).

13. The writ petitioner has disputed the letter submitted by him as to acceptance of monetary benefits in lieu of alternate employment and that it was not a voluntary one. It is also a case of the writ petitioner that he had recovered from the disability and that the same is not permanent in nature.

14. Learned Single Judge has referred to the cases of Vikas S/o. Khanderao vs. State of Maharashtra and others(2020 SCC Online Bom 801), Luis Fernandes vs. Goa State Schedule Castes and Other Backward Classes Finance and Development Corporation Limited, through its Managing Director and Ors(2023 SCC OnLine Bom 1963) , K. Moses vs. APSRTC and others(MANU/AP/0763/2010) (W.P.No.3031 of 2008, decided on 02.11.2010) and also Bhagwan Dass and Anr vs. Punjab State Electricity Board((2008) 1 Supreme Court Cases 579) as to application of the new Act viz. the Rights of the persons with Disabilities Act, 2016.

15. We find it proper to refer following precedents also. (i) In Union of India represented by the General Manager, Southern Railway, Chennai-3 & Ors. vs. Facny Babu W/o. Babu Thomas(2014 Supreme (Ker) 870) vide para No.4, which reads as follows:

                  4. The learned counsel for the petitioners contended that despite the fact that Section 47 of the Act was in force and the rights that are created in favour of the disabled, this is a case where the respondent herself had voluntarily applied for retirement from service and at the request of the respondent her services were terminated with effect from 15.02.2002. It is stated that in such a case, the Tribunal could not have ordered her reinstatement as done in the impugned order. Though this argument of the counsel would sound attractive at the first blush, on a thorough examination, we are unable to accept it, particularly in the light of the principles laid down by the Apex Court in Bhagwan Dass v. Punjab Seb [2008 (1) SCC 579], which was rendered following the judgment in Kumal Singh vs. Union of India [2003 (4) SCC 524].

                  (ii). In Kunal Singh vs. Union of India & Anr.( 2003 4 SCC 524; 2003 AIR (SC) 1623) vide para Nos.8 to 12 which read as follows:

                  8. The need for a comprehensive legislation for safeguarding the rights of persons with disabilities and enabling them to enjoy equal opportunities and to help them to fully participate in national life was felt for a long time. To realize the objective that people with disabilities should have equal opportunities and keeping their hopes and aspirations in view a meeting called the “Meet to Launch the Asian and Pacific Decades of Disabled Persons” was held in Beijing in the first week of December 1992 by the Asian and Pacific countries to ensure “full participation and equality of people with disabilities in the Asian and Pacific regions”. This meeting was held by the Economic and Social Commission for Asia and Pacific. A proclamation was adopted in the said meeting. India was a signatory to the said proclamation and agreed to give effect to the same. Pursuant thereto this Act was enacted, which came into force on 1-1-1996. The Act provides some sort of succour to the disabled persons.

                  9. Chapter VI of the Act deals with employment relating to persons with disabilities, who are yet to secure employment. Section 47, which falls in Chapter VIII, deals with an employee, who is already in service and acquires a disability during his service. It must be borne in mind that Section 2 of the Act has given distinct and different definitions of “disability” and “person with disability”. It is well settled that in the same enactment if two distinct definitions are given defining a word/expression, they must be understood accordingly in terms of the definition. It must be remembered that a person does not acquire or suffer disability by choice. An employee, who acquires disability during his service, is sought to be protected under Section 47 of the Act specifically. Such employee, acquiring disability, if not protected, would not only suffer himself, but possibly all those who depend on him would also suffer. The very frame and contents of Section 47 clearly indicate its mandatory nature. The very opening part of the section reads “no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service”. The section further provides 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; if it is not possible to adjust the employee against any post he will be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. Added to this no promotion shall be denied to a person merely on the ground of his disability as is evident from sub-section (2) of Section 47. Section 47 contains a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing a provision of a social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of Section 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service.

                  10. The argument of the learned counsel for the respondent on the basis of the definition given in Section 2(t) of the Act that benefit of Section 47 is not available to the appellant as he has suffered permanent invalidity cannot be accepted. Because, the appellant was an employee, who has acquired “disability” within the meaning of Section 2(i) of the Act and not a person with disability.

                  11. We have to notice one more aspect in relation to the appellant getting invalidity pension as per Rule 38 of the CCS Pension Rules. The Act is a special legislation dealing with persons with disabilities to provide equal opportunities, protection of rights and full participation to them. It being a special enactment, doctrine of generalia specialibus non derogant would apply. Hence Rule 38 of the Central Civil Services (Pension) Rules cannot override Section 47 of the Act. Further, Section 72 of the Act also supports the case of the appellant, which reads:

                  “72. Act to be in addition to and not in derogation of any other law.— The provisions of this Act, or the rules made thereunder shall be in addition to, and not in derogation of any other law for the time being in force or any rules, order or any instructions issued thereunder, enacted or issued for the benefit of persons with disabilities.”

                  12. Merely because under Rule 38 of the CCS (Pension) Rules, 1972, the appellant got invalidity pension is no ground to deny the protection mandatorily made available to the appellant under Section 47 of the Act. Once it is held that the appellant has acquired disability during his service and if found not suitable for the post he was holding, he could be shifted to some other post with same pay scale and service benefits; if it was not possible to adjust him against any post, he could be kept on a supernumerary post until a suitable post was available or he attains the age of superannuation, whichever is earlier. It appears no such efforts were made by the respondents. They have proceeded to hold that he was permanently incapacitated to continue in service without considering the effect of other provisions of Section 47 of the Act.

                  (iii) In Bhagwan Dass & Anr. vs. Punjab State Electricity Board(2008 1 SCC 579; 2008 AIR (SC) 4) vide para Nos.4 and 6, which read as follows:

                  4. Here, it may be noted that the rights of an employee who acquires a disability during his service are protected and safeguarded by Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Section 47 reads as follows:

                  “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, 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.”

                  It may further be noted that the import of Section 47 of the Act was considered by this Court in Kunal Singh v. Union of India [(2003) 4 SCC 524 : 2003 SCC (L&S) 482] and in para 9 of the decision it was observed and held as follows: (SCC pp. 529-30)

                  “9. Chapter VI of the Act deals with employment relating to persons with disabilities, who are yet to secure employment. Section 47, which falls in Chapter VIII, deals with an employee, who is already in service and acquires a disability during his service. It must be borne in mind that Section 2 of the Act has given distinct and different definitions of „disability‟ and „person with disability‟. It is well settled that in the same enactment if two distinct definitions are given defining a word/expression, they must be understood accordingly in terms of the definition. It must be remembered that a person does not acquire or suffer disability by choice. An employee, who acquires disability during his service, is sought to be protected under Section 47 of the Act specifically. Such employee, acquiring disability, if not protected, would not only suffer himself, but possibly all those who depend on him would also suffer. The very frame and contents of Section 47 clearly indicate its mandatory nature. The very opening part of the section reads „no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service‟. The section further provides 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; if it is not possible to adjust the employee against any post he will be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. Added to this no promotion shall be denied to a person merely on the ground of his disability as is evident from sub-section (2) of Section 47. Section 47 contains a clear directive that the employee shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing a provision of a social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of Section 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service.”

                  6. In view of Section 47 of the Act and the circulars issued by the State Government and the Board it is clear that notwithstanding the disability acquired by the appellant the Board was legally bound to continue him in service. But on behalf of the respondent it is stated that the disabled employee himself wanted to retire from service and, therefore, the provisions of Section 47 had no application to his case. Here it needs to be made clear that at no stage any plea was raised that since the appellant was declared completely blind on 17-1-1994 he was not covered by the provisions of the Act that came into force on 7-2-1996. Such plea cannot be raised because on 7-2-1996 when the Act came into force the appellant was undeniably in service and his contract of employment with the Board was subsisting. His case was, therefore, squarely covered by the provisions of the Act.

16. Distinction between the employment relating to persons with disabilities who are yet get employment and persons acquiring disability during service is dealt under separate chapters of the legislation. The situation where an employee has opted for voluntary retirement on the ground of disability is also addressed in the authorities cited above. Here is a case where the employee / writ petitioner claims that his disability is cured and that he is now fit for certain employment and is also submitting himself to undergo medical examination while undertaking to refund the amount paid to him with interest. The learned Single Judge, in para No.23 of the judgment, has directed for fresh evaluation to examine whether the writ petitioner is suitable for any alternative employment and an opportunity is given to both sides for fresh medical examination. Precautions are taken by balancing the interest of both sides. Therefore, there is proper appreciation of the matter on the factual side. Hence, no interference is necessary.

17. Further, in the light of authoritative pronouncements and the reasons adopted by the learned Single Judge of this Court, we found that orders of the learned Single Judge are well reasoned and no interference is necessary. Consequently, the appeal shall fail. The interest of both parties has been well addressed by the learned Single Judge.

18. It is relevant to note that there cannot be estoppel against statute and the benefit contemplated under the statute cannot be denied on technical reasons. The voluntary nature of acceptance of benefits by the writ petitioner has been sufficiently addressed by the learned Single Judge and the findings thereof require no interference.

19. In our considered view, there are no grounds to interfere with the impugned order of the learned Single Judge. Consequently, the appeal fails. The point framed is answered accordingly.

Point No.2:

20. In the result, the Writ Appeal is dismissed. There shall be no order as to costs. As a sequel, miscellaneous petitions pending, if any, shall stand closed.