D.Pushparaj v. Tamil Nadu Transport Corporation, Rep. by its General Manager, Villupuram Division, Villupuram

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 02.04.2009CORAMTHE HONOURABLE Mr. JUSTICE S.NAGAMUTHUWrit Petition No.19403 of 2007 andM.P.No.1 of 2007D.Pushparaj ..PetitionerVs.Tamil Nadu Transport Corporation,Rep. by its General Manager,Villupuram Division,Villupuram. ..Respondent Writ petition has been filed under Article 226 of TheConstitution of India to issue a Writ of Mandamus directing therespondent herein to include the name of the petitioner herein forthe interview, in the post of Conductor in the respondent office assponsored by the Employment Exchange, Villupuram in the handicappedquota and also direct the respondent to consider the petitioner forthe post of Conductor. For Petitioner : Ms.R.T.ShyamalaFor Respondent : Ms.Rita Chandrasekaran O R D E R"Whether a physically challenged person, possessing a validConductor's licence under the Motor Vehicles Act, can be deniedemployment in a State Transport Corporation, on the ground ofphysical deformity ?". "No". This is precisely the contention of thepetitioner in this writ petition.2.The petitioner is admittedly a physically challenged personhaving 60% of disability. He possess Conductor's licence issued underSection 30 of the Motor Vehicles Act, and he registered the same inthe local employment exchange. On an employment notification issuedby the respondent State Transport Corporation, the local employmentexchange sponsored the name of the petitioner for the post ofConductor along with many other candidates. But, the respondent didnot send call letter to him. When he enquired about the same, he wasinformed that since he is physically challenged, he cannot be givenemployment as Conductor as per the Regulation of the respondent https://hcservices.ecourts.gov.in/hcservices/ Corporation. In those circumstances, the petitioner has come forwardwith this writ petition for appropriate relief.3.In the counter filed, inter alia, it is stated by therespondent that as per Rule 59 of the Regulations of the respondentCorporation, a candidate must be free from any physical deformity andin the case of the petitioner, since he suffers from physicaldeformity measuring 60%, he was rejected. It is further contendedthat the job of a Conductor involves frequent movement inside the Busand out side, it cannot be performed by the petitioner. Lastly, it iscontended that as against the quota reserved for physicallychallenged, already several persons were appointed and as of now,there is no vacancy under the said quota.4.I have considered the rival submissions. 5.Admittedly, the petitioner possess a Conductor's licence whichmeans he is qualified to hold the said licence. Section 31 of theMotor Vehicles Act, which deals with disqualification for the grantof Conductor's licence and Section 32 which deals with revocation ofa Conductor's licence on grounds of disease or disability are asfollows:-"31.Disqualification for the grant ofConductor's licence.- (1)No person under the age of eighteen yearsshall hold, or be granted, a conductor's licence.(2)The licensing authority may refuse toissue a conductor's licence(a)If the applicant does not possessthe minimum educational qualification;(b)If the medical certificate producedby the applicant discloses that he is physicallyunfit to act as a conductor; and(c)If any previous conductor's licenceheld by the applicant was revoked.32.Revocation of a conductor's licence on groundsof disease or disability:-A conductor's licence may at any time berevoked by any licensing authority if thatauthority has reasonable grounds to believe thatthe holder of the licence is suffering from anydisease or disability which is likely to render https://hcservices.ecourts.gov.in/hcservices/ him permanently unfit to hold such a licence andwhere the authority revoking a conductor'slicence is not the authority which issued thesame, it shall intimate the fact of suchrevocation to the authority which issued thatlicence."6.While making an application for conductor's licence, underSection 30(3) of the Act, the applicant is required to submit amedical certificate signed by a registered medical practitioner andfrom out of the said certificate, if the authority is satisfied thathe is physically unfit to act as a conductor, then the competentauthority shall refuse to issue licence under Section 30(1) of theAct. If any person who is already possessing a conductor's licencesuffers from any disability or disease, which is of such a nature torender him permanently unfit to hold such a licence, the same may berevoked. From the above provisions, it could be understood thatwhether a person is qualified to possess a Conductor's licence or notis a matter to be decided only by the competent authority under theMotor Vehicles Act. On getting satisfied that the deformity asdisclosed from the medical certificate will not deter him to act as aConductor, if once, the authority has issued the licence, then, itcannot be stated by any other authority that he is not entitled to beappointed as a Conductor on the ground of physical unfitness.7.In the case on hand, since the physical fitness of thepetitioner is seriously disputed by the respondent, this Courtdirected the petitioner to be present before this Court today andaccordingly, he is present. This Court is able to see that thepetitioner, except exhibiting mild limping, walks freely andsteadily. In the opinion of this Court, the petitioner can veryeffectively discharge the functions of a Conductor as it is done byany other conductor with no physical deformity. 8.The learned counsel for the respondent relies more on Rule 59of the Regulations of the respondent Corporation which states that acandidate must be free from any physical deformity. This Rule doesnot define the term "physical deformity". It cannot be blindlyconstrued that any form of physical deformity would be adisqualification for appointment as conductor. Such a construction,in my considered opinion, would surely cause violence to the right ofequality guaranteed under Article 14 of the Constitution of India.The term 'physical deformity' as stated in Rule 59 should receivecontextual interpretation. Such physical deformity which would deterthe physically challenged from functioning as conductor alone will bea disqualification and not every deformity as it is claimed by therespondent. Therefore, Rule 59 does not in any way help therespondent to advance the case. https://hcservices.ecourts.gov.in/hcservices/

9.At this juncture, it would be worthwhile to mention about therights of the physically challenged. Giving employment to thephysically challenged is neither out of grace nor out of any sympathybut only to honour the right guaranteed to them under Article 14 ofthe Constitution of India, which speaks of equality. When aphysically challenged person and a person blessed with no physicalchallenge can equally perform a particular job, I do not find anylegal justification to decline to treat them alike. In the context ofArticle 14 of the Constitution of India, they are equals and so, theyshould be treated alike in the matter of public employment. In thecase on hand, the respondent has rejected the petitioner only on theground that he is physically challenged which in my consideredopinion, is not only violative of Article 14 of the Constitution ofIndia but it would certainly injure the dignity, feelings andsentiments of the individual. 10.As a proactive measure, to keep them in the mainstream, theParliament enacted the Persons with Disabilities (EqualOpportunities, Protection of Rights and Full Participation) Act,1995. As could be seen from the object of the Act, it is an act togive effect to the proclamation on the full prospective and equalityof the people with disabilities in the Asian and Pacific regions. Asper the decision taken in the meeting convened by the Economic andSocial Commission for Asian and Pacific held at Beijing, on first tofifth December 1992, the parliament has in its wisdom, with a view todeclare and protect the rights of the physically challenged personsin tune with the UN Convention has enacted the said Act. UnderSection 32 of the Act, it is for the appropriate Government toidentify the posts in the establishments which could be reserved forthe persons with disability. But, according to the learned counselfor the respondent, the post of the Conductor in a State TransportCorporation has not been identified under Section 32 of the Act, bythe Government of Tamil Nadu and so, according to her, the petitioneris not entitled for the benefits of the Act.11.Even after 14 years of the advent of the said Act, if it isthe fact that the State Government has not identified the post ofConductor for the purposes of this Act, in my considered opinion, itneeds the immediate attention of the Government. Therefore, I deem itappropriate to suggest to the Government to look into this and passappropriate orders in this regard as required under Section 32 of theAct.12.In the instant case, though the prayer of the petitioner isto consider him under the disabled quota, in my considered opinion,even by putting him in the general quota, he is eligible for beingappointed as Conductor as it is not the case of the respondent thatunder the general quota or for other reasons, he is not eligible forbeing appointed. https://hcservices.ecourts.gov.in/hcservices/

13.In view of all the above, the writ petition is allowed andthe respondent is directed to issue appointment order to thepetitioner within a period of two months from the date of receipt ofa copy of this order. No costs Consequently, connected miscellaneouspetition is closed. sd/-Asst.Registrar/true copy/Sub Asst.Registrar jbmTo The General Manager, Tamil Nadu Transport Corporation, Villupuram Division, Villupuram.+ 1 c.c. to Ms. R.T. Shyamala, Advocate. S.R.No.12061.+ 1 c.c. to M/s. Jayesh B. Dolia, Advocate. S.R.No.12488. W.P.No.19403 of 2007NTK (CO)GSK 15.04.2009.