The Hindu : Tamil Nadu / Madurai News : `Staff disabled in service entitled to alternative post with same benefits'

Online edition of India's National Newspaper
Friday, Apr 29, 2005

Tamil Nadu

Tamil Nadu - Madurai

`Staff disabled in service entitled to alternative post with same benefits'

Staff Reporter

Order discharging Transport Corporation driver from service for eye defect quashed

MADURAI: : The Madurai Bench of the Madras High Court on Thursday ruled that an employee afflicted with physical disability while holding office is entitled to an alternative post with the same pay and service benefits and that a Government Order could not curtail his right.

Quashing an order passed by the Tamil Nadu State Transport Corporation, discharging a driver from service for eye defect, Justice D. Murugesan said the right to livelihood, an integral part of the right to life as guaranteed under Article 21, coupled with protection under Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, entitles an employee incapacitated in service to a suitable alternative post with the pay and service benefits he drew last.

On the TNSTC contention that Section 72 of the Act states that the provisions would be in addition to the existing rules or orders and hence such employees could be discharged from service based on a Government Order issued in 1981, the judge said:

"Though the Government Order was made in exercise of the executive powers by the State, still such general executive instructions could be enforced in certain circumstances if they do not conflict with the existing law or the law made thereafter, and such executive instructions cannot override the law enacted by Parliament."

A mere reading of Section 72 stated the provisions would be in addition to the existing rules, order or any instructions, issued for the benefits of persons with disabilities. "As a corollary, if any act, rule, order or instruction issued there under, which are not beneficial to the disabled persons are not saved as they amount to deprivation of the benefits under the Act."

According to a Government Order issued by the Transport department, workers who are declared medically unfit for continuance in service, because of defect in eyesight or any other ailment during routine medical check-up, would be discharged from service and given alternative employment in posts such as `helpers' as fresh entrants with pay scale or consolidated pay admissible to the new post.

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