Creation of a Supernumerary Post

Lance Naik Vinod Kumar vs. Union of India

Filed Under: Sections 2, 47 and 47(1) of the Persons with Disabilities Act, 1995
Appellant: Lance Naik Vinod Kumar
Respondent: Union of India
Citation: 2003 (4) MPHT 426
Court: In the High Court of Madhya Pradesh
Judge: SP Khare

Vinod Kumar was given a sheltered appointment in the army subsequent to injury. This is a Writ Petition filed by him against the order of his discharge from service on the ground that sheltered appointment was unavailable.

Facts

Vinod Kumar was enrolled as a soldier in the Indian Army. He sustained a head injury while boxing which was as a part of the organized games in the unit. The Court of Inquiry attributed the injury to Military Service. Vinod was examined several times and was treated for the injury. He was then given sheltered appointment for about 5 years. Thereafter, he was discharged from service on the ground of “non-availability of sheltered appointment”.

He then filed this Writ Petition against the order issued for his discharge from the Army Service.

Arguments made on behalf of Vinod

Vinod's main contention was that just before he was discharged from service, he was supposed to have been examined by the Medical Board to ascertain whether he was still not in a position to perform his duties. However, the order had been issued before such an examination could take place. He also pointed out that he was short of only 2 years and 5 months for completing 15 years of service, after which he would be eligible to pension. He added that several other similarly situated individuals had been granted sheltered appointment. A list of names of such individuals was presented.

Arguments made on behalf of UOI

In response to these arguments,the Army stated that Vinod had been given sheltered appointment for about 5 years but due to non-availability of sheltered appointments he could not be given further extension.

Observations of the Court

The Court analyzed the arguments put forth by both the parties. The Court also referred to a circular issued by the Army Headquarters, which stated that every effort should be made to provide sheltered appointments. The circular further stated that those employees who were nearing their pensionable service should preferably be retained.

The Court then stated that Vinod was due for a fresh medical examination, which would ascertain his medical category. The Court pointed out that according to Vinod he had improved and was no longer a disabled person. According to the Court, his condition should have been examined before he was discharged from service. The Court also referred to the provisions of the Persons with Disabilities Act, 1995 and stated that Vinod's case should be considered according to the provisions of Section 47 of the Act.

The Court allowed the appeal and directed the Union of India to keep Vinod on a supernumerary post until his service period of 15 years was completed so that he could earn his minimum pension.

Sections Referred:

  • Article 47 of the Persons with Disabilities Act, 1995

Top

K Kamatchi vs the Managing Director, Tamil Nadu State Transport Corporation Madhurai (Division IV) Ltd. and the Tamil Nadu State Transport Corporation Pvt, Kumbam Branch

Filed under: Section 12 (3) of the Industrial Disputes Act, 1947
Section 47 of the Persons with Disabilities Act, 1995
Workmen’s Compensation Act
The Constitution of India
Appellant: K Kamatchi
Respondents: The Managing Director, Tamil Nadu State Transport Corporation Madhuri (Division IV) Ltd. and the Tamil Nadu State Transport Corporation Pvt, Kumbam Branch
Citation: W.P. No. 12972 of 2001 and W.P.M.P. Nos. 34093 of 2002 and 46949 of 2004, Decided on 06.01.2006 (unreported)
Court: In the High Court of Madras
Judge: P. Jyothimani

This Writ Petition is filed by K. Kamatchi challenging the order of his dismissal passed by the Tamil Nadu State Transport Corporation Madurai Ltd on the grounds of medical disability.

Facts

K. Kamatchi was appointed as a Conductor in Rani Mangammal Transport Corporation, which was later merged with the Tamil Nadu State Transport Corporation Limited (from here on Corporation). Though Kamatchi was appointed as a Conductor, he was allotted the work of a cashier along with two other persons. One day when he was traveling from the Head Office at Dindigul to the Dindigul City, he met with an accident following which he had to be hospitalized for treatment.

On discharge from the hospital, he appeared before the Regional Medical Board, which certified that he was invalid for the post of a Conductor. The Corporation ultimately discharged him from service on the ground of medical disability. Aggrieved, Kamatchi filed a Writ Petition against the order of his discharge but it was dismissed. He then filled an appeal against it, which was also dismissed.

Distressed, Kamatchi went back to the Corporation and made a representation requesting them to provide him with alternative employment in accordance with the ‘Memorandum of Settlement’ and provision of the Industrial Disputes Act. On not receiving a reply, he filed another Writ Petition in the High Court, which directed that his representation should be considered and an order should be passed accordingly.

In pursuant to the order of the High Court, the impugned order was passed by the Corporation stating that since Kamatchi was discharged on medical grounds, he was kept in the waiting list of similar candidates and as and when his turn came, he would be considered. It is this order, which is challenged in the present Writ Petition

Arguments made on Behalf of Kamatchi

It was argued on behalf of Kamatchi that he was entitled to an alternative employment as per the rules of the memorandum of association, the Industrial Disputes Act and the Persons with Disabilities Act. Further, it was contended that according to the provisions of Section 47 (1) of the Persons with Disabilities Act, no establishment can terminate or reduce in rank, the service of any employee, who acquires a disability during his service.

Arguments made on behalf of Corporation

It was argued on behalf of Corporation that it was not denying Kamatchi his right of employment. The Corporation further stated that Kamatchi was discharged on medical grounds and was being kept in the waiting list.  As and when vacancy arose, he would definitely be given a post.

Observations of the Court

After hearing out the arguments of both the parties, the Court held that since Kamatchi had been discharged on medical grounds he was entitled to the benefits of Section 47(1) of the Act. It was concluded that he was entitled to a job in the same cadre in which he had been working at the time of acquiring the disability, or in the absence of such a post, a supernumerary post would have to be created, in the same scale of pay.

The Writ Petition was thus disposed of with directions to the Corporation to comply with order within a period of six weeks from the date of receipt of a copy of the order.

Sections Referred:

  • Section 12(3) of the Industrial Disputes Act, 1947,
  • Section 47 of the Persons with Disabilities Act, 1995

Cases Referred:

  • Kunal Singh vs. Union of India and Anr., TJ 2003 (2) SC 132;
  • Metropolitan Transport Corporation Limited vs. K. Ravichandran, CDJ 2005 MHC 851;
  • General Manager vs. A. John Peter, CDJ 2005 MHC 834

Top

L. Loganathan vs. The Managing Director, Tamil Nadu Express State Corporation and the General Manager (Amdn), Tamil Nadu Express State Transport Corporation

Filed Under: Article 226 of the Constitution of India
Section 47 of the Persons with Disabilities Law
Service law
Appellant: L. Loganathan
Respondent: The Managing Director, Tamil Nadu Express State Corporation and the General Manager (Amdn), Tamil Nadu Express State Transport Corporation
Citation: (2005) I LLJ 458 Mad
Court: In the High Court of Madras
Judge: V. Kanagaraj

Facts

L. Loganathan was appointed as a driver in the Tamil Nadu State Transport Corporation (referred to as Corporation) in the year 1991. In 1997 while he was in service, Loganathan met with an accident, and was seriously injured. The doctor certified that he was no longer fit to drive a public transport vehicle and recommended that Loganathan be given an alternative job.

However, Loganathan was not taken back into service nor provided any other job, in spite of the many representations he made to the Corporation. Further, the Corporation issued a show cause notice as to why his services should not be terminated. Though a detailed reply was submitted, the Corporation passed an order terminating his services. Thereafter he made a requisition to the Corporation seeking to provide him an alternate job, but there was no reply. Aggrieved, Loganathan filed this petition in the High Court of Madras.

Observations of the Court

It was observed by the Court once it was held that Loganathan had acquired disability during his service and if after that he found unsuitable for the post he had been holding, he should be shifted to some other post with the 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 attained the age of superannuation, whichever is earlier.

The Court observed that no efforts in this direction had been made by the transport Corporation. They have continued to hold that Loganathan was permanently incapacitated to continue in service without considering the provisions of Section 47 of the Persons with Disabilities Act. Relying on a judgment given by the apex Court in a similar case, the order of termination of Lognathan’s services was set aside

Held:The Writ Petition was allowed.

Sections Referred:

  • Article 226 of the Constitution of India
  • Section 47 of the Persons with Disabilities Law

Cases Referred:

  • Kunal Singh vs. Union of India, 2003 AIR SCW 1013;
  • Anand Bihari vs. Rajasthan SRTC, 1991 SCC (L&S) 393

Top