A-1

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION
L LEAVE PETJTJ NO. OF 2020

(WITH PRAYER FOR INTERIM RELIEF)

(Arising out of the final judgment and order dated 16/07/2020 in Writ Petition
No. 9762, 9763, 9764, 9765, 9767, 10192, 23126, 23128, 23131, 23132,
23225, 26405, 30670 of 2019 and 703 of 2020 passed by the High Court of
judicature at Bombay]
BETWEEN:

THE STATE OF PETITIONER

MAHARASHTRA ROAD AND
TRANSPORT CORPORATION
AND OTHERS

VERSUS
VIKAS S/O RESPONDENTS
KHANDERAO KENG
AND ANOTHER
With
I.A. No. of 2020
Application for Exemption from Certified
Copy of the Impugned Order
&
I.A. No. of 2020
Application for Exemption from Official
Translation

Vol-1 PG. B-191

PAPER-BOOK

(FOR INDE-X -INBL Y SEE INSIDE)

ADVOCATE FOR
THE PETITIONER:
MS.MAYURI RAGHUVANSHI
Filed On. 09.10.2020
 A-2

RECORD OF PROCEEDING

SR.NO. RECORD OF PAGE NO.

PROCEEDING
1. Court's Order dated
2. Court's Order dated
3. Court's Order dated
4. Court's Order dated
5. Court's Order dated
6. Court's Order dated
7. Court's Order dated
8. Court's Order dated
9. Court's Order dated
10. Court's Order dated
11. Court's Order dated
12. Court's Order dated
13. Court's Order dated
14. Court's Order dated
15. Court's Order dated
16. Court's Order dated
17. Court's Order dated
18. Court's Order dated
19. Court's Order dated
20. Court's Order dated
21. Court's Order dated
22. Court's Order dated
23. Court's Order dated
 Not a Batch Matter

INDEX Total Pages.364

S.No. Particulars of Page No. of the part to Remarks

Documents which it belongs
Part I Part II
(Contents of
(Contents
Paper Book)
of File
Alone)

Court Fee
(I) (II) (Ill) (IV) (V)

1. 0/R on Limitation A A
2. Listing Performa A-1 A-2
3. Cover Page of Paper A-3
Book
4. Index of Record of A-4
Proceedings
5. Limitation Report A-5
Prepared by The
Registry

6. Defect List A-6

7. Note Sheet NS I-

8. List of Dates B-H

9. Certified Copy of 1M54
Final Order and
Judgment dated
16/07/2020 m Writ
Petition No. 9762,
9763, 9764, 9765,
9767, 10192, 23126,
23128, 23131, 23132,
23225, 26405, 30670
of 2019 and 703 of
2020 passed by the
 High Court of
judicature at Bombay
10. SLP & Certificate 55-86
with Affidavit
11. ANNEXURE-P/1 87-91
True and correct
English translation of
the circular dated
29/07/2016
12. ANNEXURE-P/2 92-108
True copy of the Writ
Petition No. 9763 of
2019
13. ANNEXURE-P/3 109-125
True copy of the Writ
Petition No. 9764 of
2019
14. ANNEXURE-P/4 126-141
True copy of the Writ
Petition No. 9765 of
2019
15. ANNEXURE-P/5 142-158
True copy of the Writ
Petition No. 9767 of
2019
16. ANNEXURE-P/6 159-175
True copy of the Writ
Petition No. 10192 of
2019
17. ANNEXURE-P/7 176-191
True copy of the Writ
Petition No. 23126 of
2019

Volume-II
18. ANNEXURE-P/8 192-208
True copy of the Writ
Petition No. 23128 of
2019
19. ANNEXURE-P/9 209-224
True copy of the Writ
Petition No. 23131 of
2019
20. ANNEXURE-P/10 225-241
True copy of the Writ
Petition No. 23132 of
2019
21. ANNEXURE-P/11 242-258
True copy of the
amended Writ Petition
No. 23225 of 2019
22. ANNEXURE-P/12 259-275
True copy of the
amended Writ Petition
No. 26405 of 2019
23. ANNEXURE-P/13 276-292
True copy of the
amended Writ Petition
No. 30670 of2019
24. ANNEXURE-P/14 293-295
True and correct
English translation of
the office order dated
07/10/2019
25. ANNEXURE-P/15 296-309
True and correct
English translation of
the report dated
19/12/2019
26. ANNEXURE-P/16 310-325
True copy of the Writ
Petition No 703/2020
dated 19/01/2020 filed
before the High Court
27. ANNEXURE-P/17 326-335
True and correct
English translation of
the circular dated
23/01/2020
28. ANNEXURE-P/18 336-337
True copy of the order
dated 31/01/2020

29. ANNEXURE-P/19 338-356

True copy of the

amended Writ Petition
No. 9762 of 2019
30. I.A OF 2020 357-359
Application for
Exemption from
Certified Copy of the
Impugned Order

31. I.A OF 2020 360-362

Application for
Exemption from
Official Translation
32. FIM 363

33. VIK 364

 A
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (C) NO . OF 2020
(WITH PRAYER FOR INTERIM RELIEF)

BETWEEN:

IN THE MATTER OF:

THE STATE OF
MAHARASHTRA ROAD PETITIONER
AND TRANSPORT
CORPORATION AND
OTHERS

VERSUS
VIKAS S/O KHANDERAO
KENG AND ANOTHER RESPONDENTS
ETC. ETC.
OFFICE REPORT ON LIMITATION
1. The petition is/are within time.

2. The petition is barred by time and there is delay of_ days in filing the
same against order dated 16.07.2020 and petition for condonation of
delay _ days delay has been filed

3. There is delay of days in refilling the petition and petition for

condonation of days delay in refilling has been filed.

BRANCH OFFICER
NEW DELHI
DATED: 09/10/2020
 A-
PROFORMA FOR FIRST LISTING

SECTION: IX
The case pertains to (Please tick/check the correct box):
□ Central Act: Rights of Persons with Disabilities Act 2016
□ Section: 20
□ Central Rule: (Title) NA. _
D Rule No(s): :NA _
□ State Act: (Title) NA _
□ Section: ;:NA. _
□ State Rule: (Title) _ _ NA _
□ RuleNo(s): _ _ _ _ NA_ _ _ _ _ _ _ _ _
□ Impugned Interim order : (Date) NA _
□ Impugned Final Order dated: 16.07.2020
□ High Court: (Name) Hon'ble High Court of Judicature at Bombay
□ Names of Judges: Hon'ble S.J. Kathawalla, & R.I. Chagla,JJ.
□ Tribunal/Authority:(Name) NIA
1. Nature of Matter: Civil
2. (a) Petitioner/Appellant No.1 The State of Maharashtra Road And
Transport Corporation and Others
(b) e-mail ID:- - - - - -
NA- - - - - - - -
-
(c) Mobile phone No. NA_ _ _ _ _ _ _
3. (a) Respondent No. I: Vikas S/o Khanderao Keng And Another ETC.
ETC.
(b) e-mail ID:_ _ _ _ _ _ _ NA_ _ _ _ _ _ _

(c) Mobile phone No. NA_ _ _ _ _ _ _

4. (a) Main category classification:06
(b) Sub classification: 0613 Others
5. Not to be listed before:
NA------
-----
6.a) Similar disposed of matter with citations, if any & case
details: No Similar Matter Disposed
(b) Similar pending matter with case details: No Similar Matter Pending
7. Criminal Matters: (civil)
 A-
(a) Whether accused/convict has surrendered:
(b)
FIR No. - - - - Date: ----NA----
(c) Police Station: _ _ _ _ _ _ _ _ NA_ _ _
(d) Sentence Awarded: NA_ _ _ _ _
(e) Period of sentence undergone including period of detention /
custody undergone______________NA
8. Land Acquisition Matters: NA
(a) Date of Section 4 notification: NA- - - - - - - -
(b) Date of Section 6 notification: NA- - - - - - - -
(c) Date of Section 17 notification: NA_ _ _ _ _ _ _ _

9. Tax Matters: State the tax effect: -- NA- - - - - - - -

10. Special Category (First petitioner/appellant only): NA
□ Senior Citizen > years □ SC/ST □ Woman/ Child
□Disabled □ Legal Aid case □ In custody
11. Vehicle Number (in case of Motor Accident Claim matters): NA

Date: 09/10/2020

[MAYURI RAGHUVANSHI]
Advocate on Record
Registration No: 1963
raghuvanshi.mayuri@gmail.com
 B
SYNOPSIS AND LIST OF DATES
The present Special Leave Petition seeks to impugn common final
judgment dated 16/07/2020 passed by the Hon'ble High Court of
Judicature at Bombay in Writ Petition No. 9762, 9763, 9764, 9765,
9767, 10192, 23126, 23128, 23131, 23132, 23225, 26405, 30670 of
2019 and 703 of 2020 whereby clause 11 of the Circular dated
23/01/2020 issued by the petitioner has been quashed.

The Respondents who were working as drivers with the Petitioner

Corporation were diagnosed with Colour Vision Defect and had
challenged clause 11 of the above mentioned Circular dated 23/01/2020
which stipulated that after an employee is diagnosed with a disability the
matter would be examined and until such examination is complete and a
final decision is taken about the fitness of employee or his alternate
employment, the intervening period would be treated as leave without
pay and the earned leave on the earlier job would be carried forward to
the new job.

It is most respectfully submitted that the Hon'ble High Court has erred
in directing the petitioner to pay back wages to the respondents from the
date their respective services were discontinued until the day they have
been provided with alternative position as the burden of proof, having
regards to the principles analogous to Section 106 of the Evidence Act
that employee was not gainfully employed, was on the respondents.
However the impugned order has put the burden on the petitioner to
ascertain whether or not the respondents were gainfully employed while
paying the back-wages. Further the capacity, including financial
capacity of the Petitioner has suffered a severe setback on account of the
outbreak pandemic leaving the Petitioner unable to bear the financial
burden of payment of entire backwages to the respondents. It is most
 C
respectfully submitted that Section 20 of the Rights of Persons with
Disabilities Act 2016 did not envisage automatic entitlement to pay
disregarding the type of work carried on in any establishment. The
language of Section 20 acknowledges that a straight jacket formula
cannot be applied to all establishments. The petitioner in the present
case is a state road transport corporation and has faced a severe setback
upon outbreak of the pandemic. Clause 11 of the circular dated
23/01/2020 was an attempt to balance the competing interests of the
employer and employee while ensuring compliance of the Rights of
Persons with Disabilities Act 2016.

It is also most respectfully submitted that clause 11 of the impugned

circular does not leaves it to the employer to decide on alternative
employment at its own sweet way and at its own leisure. However it is
also true accommodating drivers in a Corporation that provides public
transport to an alternative equivalent post takes time especially in the
present unusual circumstances that brought work to a standstill for
months.

It is also pertinent to submit that the employees were granted liberty to

amend the writ petitions whereby a completely new case was set up. The
challenge to earlier circular was given up and an entirely new case
challenging clause 11 of the new circular was pleaded pursuant to order
of High Court passed on 31/01/2020. However the judgment in the
matter was reserved on 18/03/2020 without the reply of the Petitioner to
the new plea set up by the employees.

It is in these circumstances that the Petitioner is seeking benevolent

indulgence of this Hon'ble Court in the present matter. The facts of the
case, chronologically, are as under: -
 D
29/07/2016 Circular was issued by the Corporation which
stipulated that once a driver has been declared unfit
by reason of color blindness, such driver shall be not
entitled to an alternative service or job with the
Corporation. True and correct English translation of
the circular dated 29/07/2016 is marked and annexed
hereto as ANNEXURE:P-1. (Pages 87-91)

21/07/2017 Letter was issued to the Hospital by the Petitioner for

routine check of the drivers employed with the
Petitioner. Pursuant to the check up the respondent
drivers were diagnosed with Color Vision Defect.

2018 Pursuant to the above report, the Respondent-drivers

were called upon to appear before J.J. Hospital for
further eye examination. The Respondent-drivers
were once again diagnosed with Color Vision Defect
along with further statement that they were unfit to
perform services with the Corporation as drivers.

2019 Respondent-drivers filed writ petitions assailing the

circular dated 29/07/2016 on the ground that it was
ultra vires the Constitution of India as well as the
Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act 1995
and the Rights of Persons with Disabilities Act 2016.
True copy of the Writ Petition No. 9763 of 2019 sans
annexures is marked and annexed hereto as
ANNEXURE:P-2. (Pages 92-108) True copy of the
Writ Petition No. 9764 of 2019 sans annexures is
marked and annexed hereto as ANNEXURE:P-3.
 E
(Pages 109-125) True copy of the Writ Petition No.
9765 of 2019 sans annexures is marked and annexed
hereto as ANNEXURE:P-4. (Pages 126-141) True
copy of the Writ Petition No. 9767 of 2019 sans
annexures is marked and annexed hereto as
ANNEXURE:P-5. (Pages 142-158) True copy of the
Writ Petition No. 10192 of 2019 sans annexures is
marked and annexed hereto as ANNEXURE:P-06.
(Pages 159-175) True copy of the Writ Petition No.
23126 of 2019 sans annexures is marked and
annexed hereto as ANNEXURE:P-07. (Pages 176-
191) True copy of the Writ Petition No. 23128 of
2019 sans annexures is marked and annexed hereto
as ANNEXURE:P-08. (Pages 192-208) True copy of
the Writ Petition No. 23131 of 2019 sans annexures
is marked and annexed hereto as ANNEXURE:P-09.
(Pages 209-224) True copy of the Writ Petition No.
23132 of 2019 sans annexures is marked and
annexed hereto as ANNEXURE:P-10. (Pages 225-
241) True copy of the amended Writ Petition No.
23225 of 2019 sans annexures is marked and
annexed hereto as ANNEXURE:P-11. (Pages 242-
258) True copy of the amended Writ Petition No.
26405 of 2019 sans annexures is marked and
annexed hereto as ANNEXURE:P-12. (Pages 259-
275) True copy of the amended Writ Petition No.
30670 of 2019 sans annexures is marked and
annexed hereto as ANNEXURE:P-13. (Pages 276-
292)
 F
07/10/2019 Office order was passed by the Corporation
constituting a committee to submit report and
prescribed guidelines for compliance with provisions
of section 47 of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full
Participation) Act 1995. True and correct English
translation of the office order dated 07/10/2019 is
marked and annexed hereto as ANNEXURE:P-14.
(Pages 293-295)

19/12/2019 Committee constituted by the Corporation submitted

its report to the Managing Director. True and con-ect
English translation of the report dated 19/12/2019
submitted to the Managing Director of the
Corporation is marked and annexed hereto as
ANNEXURE:P-15. (Pages 296-309)

19/01/2020 Writ Petition No.703/2020 was filed by the

respondent-Adinath challenging the circular dated
29/07/2016. True copy of the Writ Petition No
703/2020 dated 19/01/2020 filed before the High
Court 1s marked and annexed hereto as
ANNEXURE:P-16. (Pages 310-325)

23/01/2020 Based upon the above Report, the Corporation issued

a circular superseding the 2016 circular wherein
apart from stating the procedure for conducting test
for identifying the category of colourblindness and
fitness of an employee to carry out his task as driver,
the circular also envisaged providing alternative
accommodation as labourer, peon, guesthouse
 G
attendant, Cook etc to the drivers who upon
examination would be found ineligible to continue as
drivers. Clause 11 of the said circular stipulated that
after an employee is diagnosed with disability the
matter would be examined and until such
examination is complete and a decision 1s taken
about the fitness of the employee or his alternate
employment, the intervening period would be treated
as leave without pay and the earned leave on the
earlier job would be carried forward to the new job.
True and correct English translation of the circular
dated 23/01/2020 is marked and annexed hereto as
ANNEXURE:P-17. (Pages 326-335)

31/01/2020
High Court granted liberty to the respondent-drivers
to amend the writ petitions restricting their challenge
to clause 11 of the circular dated 23/01/2020. True
copy of the order dated 31/01/2020 is marked and
annexed hereto as ANNEXURE:P-18. (Pages 336-
337)

Pursuant to the above-mentioned order, the writ

petitions came to be amended. True copy of the
amended Writ Petition No. 9762 of 2019 sans
annexures is marked and annexed hereto as
ANNEXURE:P-19. (Pages 338-356)
16/07/2020
Impugned Judgement and order was passed quashing
clause 11 of the circular dated 23/01/2020 and
directing the Corporation to provide each one of the
Respondent-drivers without in a post having same
 H
pay scale in service benefit as the earlier position
within. 4 weeks. Further while computing the
amount of back wages the Corporation was to
ascertain as to whether or not the respondent-drivers
had been employed elsewhere even when it is settled
that the burden to prove that the employee was not
gainfully employed elsewhere lies on the employee
not the employer.

09;10.2020
Hence the present Special Leave Petition is being
filed.
 1
N.D.
Jagtap Nitin 1 / 54 WP- 9762-201 9-Fi na l _ l 3.07 . 2020 .doc
ttt•gYJ1& ;
Date, 2020 07,16
11'24 ,56 +0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9762 OF 2019
Vikas S/o. Khanderao Keng,
)
Age : 44 years, Occupation : Nil,
)
R/o. Warwandi Post Dhakambe,
)
Tq. Dindori, Dist. Nashik.
) Petitioner
Versus
1. The State of Maharashtra, )
Through its Principal Secretary, )
Maharashtra State Transport Department, )
Mantralaya, Mumbai - 400 032 )

2. The State of Maharashtra, )

Road and Transport Corporation, )
Maharashtra Wahatuk Bhavan, )
Dr.Anandrao Nair Marg, Mumbai - 440008 )

3. The Divisional Controller, )

State Transport Corporation, )
Nashik, Tq. & Dist. Nashik. )

4.The Depot Manager, )

State Transport Corporation, )
Pimpalgaon (Basmat), Tq. Nashik, )
Dist. Nashik. ) ... Respondents
 2
Nitin 2 / 54 WP-9762-2019-Fina1_ 13 .07 .2020.doc

ALONG WITH
WRIT PETITION NO. 9763 OF 2019
Samadhan S/o. Babaji Pawar,
) Petitioner
Versus
I. The State of Maharashtra &
Ors. ) Respondents
WITH
WRIT PETITION NO. 9764 OF 2019
Sanjay S/o. Ragho Dukale,
) Petitioner
Versus
I. The State of Maharashtra &
Ors. ) Respondents
WITH
WRIT PETITION NO. 9765 OF 2019
Ramchandra S/o. Savaliram Chavan,
) Petitioner
Versus
I. The State of Maharashtra & Ors.
) Respondents
WITH
WRIT PETITION NO. 9767 OF 2019
Ashok S/o. Buwaji Pagar,
) Petitioner
Versus
I. The State of Maharashtra &
Ors. ) Respondents
WITH
WRIT PETITION NO. 10192 OF 2019
Ashok S/o. Barku Sanap,
) Petitioner
Versus
I. The State of Maharashtra & Ors.
) Respondents
 3
Nitin 3 I 54 WP-9762-2019-Final _ B .07.2020.doc

WITH
WRIT PETITION (L) NO. 23126 OF 2019
Daga S/o. Bhaurao Bhadane, ) Petitioner
Versus
1.
The State of Maharashtra & Ors. ) Respondents
WITH
WRIT PETITION (L) NO. 23128 OF 2019
Rajesh S/o. Vitthal Pawar, ) Petitioner
Versus
1. The State of Maharashtra & Ors. ) Respondents
WITH
WRIT PETITION (L) NO. 23131 OF 2019
Harichandra S/o. Mahadu Desale ) Petitioner
Versus
1. The State of Maharashtra & Ors. ) Respondents
WITH
WRIT PETITION (L) NO. 23132 OF 2019
Narayan Dattu Liddad ) Petitioner
Versus
1. The State of Maharashtra & Ors. ) Respondents
WITH
WRIT PETITION (L) NO. 23225 OF 2019
Kallas S/o. Sudam Kale ) Petitioner
Versus
1. The State of Maharashtra & Ors. ) Respondents
 4
Nitin 4 I 54 WP-97 62-2019-Fi na1_ 13 . 07 .20 20.doc

WITH
WRIT PETITION (L) NO. 26405 OF 2019
Gangaram S/o. Nanaji Chavan ) Petitioner
Versus
1. The State of Maharashtra & Ors. ) Respondents
WITH
WRIT PETITION (L) NO. 30670 OF 2019
Sanjay S/o. Rambhau Fase ) Petitioner
Versus
1. The State of Maharashtra & Ors. ) Respondents
WITH
WRIT PETITION NO. 703 OF 2020
Adinath S/o. Anand Kumbhar
) Petitioner
Versus
1. The State of Maharashtra &
) Respondents
Ors.

APPEARANCES :
Mr.K.N.Shermale, for Petitioners
Mrs.A.A.Purav, AGP for Respondent No. 1
Mr.Nitesh Vishwanath Bhutekar, for Respondent No. 3
Dr. Milind Sathe, Sr.Adv. (Amicus Curiae)

CORAM: S.J. KATHAWALLA &

R.I.CHAGLA, JJ.
JUDGMENT RESERVED ON: 18TH MARCH, 2020
JUDGMENT PRONOUNCED ON: 16thJULY, 2020
 5
Nitin 5 / 54 WP-9762-201 9-Final_ B . 07 .2020.doc

JUDGMENT: ( PER S.T. KATHAWALLA,J.):

1. These 14 Writ Petitions have been filed by 14 drivers of the Maharashtra

State Road Transport Corporation ("MSRTC ") whose services were discontinued by

MSRTC on the ground that they had been diagnosed with 'colour blindness: It is the

Petitioners' grievance that subsequent to their discontinuance, they have neither

been provided with alternative jobs nor have they received any salaries for the last

more

than 02 years, i.e. since 26th April, 2018.

2. The facts leading to the filing of the Petitions, are as under :

2.1. The Petitioners were appointed as drivers with MSRTC.

2.2. On 2rt December, 2017, Respondent No.3 issued a letter to Bapaye Hospital

directing a routine check-up of the Petitioners.

2.3. Pursuant to the aforesaid check-up, Bapaye Hospital issued reports

recording that the Petitioners are diagnosed with Colour Vision Defect.

2.4. Following the above Reports issued by Bapaye Hospital, Respondent No.4

issued letters in 2018 to the Petitioners directing them to appear before J.J. Hospital

for a further eye examination.

2.5. Thereafter, tests were conducted at J.J. Hospital and reports came to be

issued.

2.6. In the Reports issued by J.J. Hospital, the Petitioners were once again stated

to be diagnosed with Colour Vision Defect along with a further statement that the

Petitioners' are unfit to perform services with MSRTC as drivers.

 6
Nitin 6 / 54 WP-9762-2019-Final_ 13 .07 .2020.doc

2.7. All of the above led to various letters being issued by the Respondents to the

Petitioners terminating their services as a result of the Petitioners having been

diagnosed with colour blindness.

2.8. Following their termination, various letters were addressed by the

Petitioners to the Respondents requesting that they be provided with alternative

employment within MSRTC. The Petitioners pleaded that they have carried out their

services until date with an unblemished record and that their families depend upon the

Petitioners for their livelihood. The Petitioners further recorded that they have no

other source of income barring their employment by MSRTC.

2.9. The aforesaid requests for alternative service / employment came to be

rejected by MSRTC, which placed reliance upon a Circular dated 29th July, 2016

issued by MSRTC ("2016 Impugned Circular"). Under the 2016 Impugned

Circular, once a driver has been declared unfit by reason of colour blindness, such

driver is not entitled to an alternative service or job with MSRTC.

2.10. The 2016 Impugned Circular was therefore assailed by the Petitioners in the

Writ Petitions. It was the Petitioners' case that the 2016 Impugned Circular was

unconstitutional and violated the Petitioners' rights under the Constitution of India,

whilst also being ultra vires the Persons with Disabilities (Equal Opportunities,

Protection of Rights and Full Participation) Act, 1995 ("1995 Act") and the Rights of

Persons with Disabilities Act, 2016 ("2016 Act").

 7
Nitin 7 I 54 WP-9762-2019-Final _ 13.07.2020 .doc

2.11. During the pendency of these Writ Petitions, recognizing the defect in the

2016 Impugned Circular, MSRTC, by an Office Order dated 7th October, 2019,

constituted a Committee to submit a report and prescribe guidelines for compliance

with the provisions of Section 47 of the 1995 Act.

2.12. During the pendency of the Writ Petitions, on 25th November, 2019, whilst

noting that MSRTC had taken sufficient time in formulating its new guidelines, this

Court passed the following Order :

"1. The above 13 Writ Petitions are filed by the drivers of the
Maharashtra State Road Transport Corporation (for short
"MSRTCJJ) whose services have been discontinued by the
MSRTC on the ground that they are suffering from colour
blt'ndness and are neither given any alternate jobs nor any
payment towards salary since 2 6th Apri 2018. It appears that
MSRTC is taking its own time in forming guidelines with
regard to offering alternate jobs to these drivers. In view thereof
these employee's have no income since 26th April)2018 because of
which they are unable to take care of themselves as well as the
members of their respective families.
2. The Respondent MSRTC needs to be sensitive towards the
problems faced by these drivers and their dependents by offering
alternate jobs to them and start paying them their monthly salary
to enable them to take care of their family members including old
parents and their children who are still attending schools/colleges.
The Managing Director of the MSRTC shall himself file his
affidavit on zid Decemhef°i 2019 and inform the Court as to what
 8
Nitin 8 I 54 WP-9762-201 9-Fi nal_ B . 07.202 0.doc

steps MSRTC has decided to take in the matter and as to when

these drivers shall get alternate jobs I their monthly salary. The
Divisional Controller shall remain present in this Court on 2 nd
December_, 2019 so that an amicable arrangement can be worked
out.
3. Stand over to 2 nd December_, 2019) High on Board)) . .

2.13. On 2 nd December, 2019, the following Order came to be passed :

"1. The learned Advocate appearing for the MSRTC states

that he has spoken to Mr. Ranjit Singh Deol Vice Chairman
and Managing Director of MSRTC and Mr. Deol has asked
him to convey his undertaking to this Court that the report
will be finalized by the Committee and placed before the
Board of Directors of MSRTC within a period of four weeks
from today and no further extension will be sought on any
ground whatsoever. The undertaking is accepted.
2. The learned Advocate appearing for the Petitioners states
that Mr. Kai/as Sudam Kale - Petitioner in Writ Petition (L)
No.23225 of 2019 has made an application to MSRTC to allow
him to withdraw 50% of his provident fund amount since the
marriage of his daughter is fixed on 11th December_, 2019. The
said application shall be sympathetically considered by the
MSRTC and the decision shall be conveyed to Mr. Kailas S.
Kale on or before 5th December_, 2019. If the Application of Mr.
Kale is allowed) the amount shall be forthwith paid to him i.e.
by 6th December_, 2019.
3. Stand over to 3rd January) 2020. JJ
 9
Nitin 9 I 54 WP-9762-2019 -Final _ 13.07.2020.doc

2.14. Again on 10th January 2020, the following Order was passed:

axxx
2. Thereafter_, on 2nd December_, 2019 an Undertaking was
given to the Court on behalf of the MSRTC that the Committee)
wht'ch is formed to look into the issues pertaining to problems
faced by the employee of the MSRTC will be placed before the
Board of Directors within a period of four weeks. The Report was
filed with the Managing Director of MSRTC on 19th December_,
2019. The Transport Minister is the Chairman of the Board of
the MSRTC. It is submitted that since the Government ts
recently formed in the State) the Board shall now take a call on
the report submitted to the Board. We therefore direct the Board
of Directors of the MSRTC to consider the report and convey its
decision to this Court within a period of four weeks from today.
3. A copy of this order shall he forthwith served to the Minister of
Transport who is the Chairman of the Board of MSRTC.
4. Stand over to 31st January) 2020 )

2.15. As recorded hereinabove, the Committee constituted by MSRTC

submitted / filed its Report with the Managing Director of MSRTC on 19th December,

2019 ("MSRTC Report"). Based upon the said Report, MSRTC issued a Circular

on 23rd January 2020 ("Impugned Circular") superseding the 2016 Impugned

Circular.
 10

Nit 10 / WP-9 762-2019- Fi na l_ B . 0 7.2020

2.16. The Impugned Circular broadly provides as under :

a. Disabilities are of two categories, vz'z. (t) colour blindness and; (z'z') being

medically unfit.

b. The Impugned Circular provides for the procedure for conducting tests

to identify the category of colour blindness. The Impugned Circular additionally

provides whether or not the person diagnosed with a particular category of colour

blindness is fit to continue and carry out his task as a driver with MSRTC.

c. The guidelines further provide that after such examination, a person

who can continue and a person who is not eligible to continue to work as a driver,

would be accommodated by MSRTC in another position vz'z. a labourer, peon, guest

house attendant, cook etc.

d. Clause 11 of the Impugned Circular and the one which is germane to

these Writ Petitions, provides that after an employee is diagnosed with a disability, the

matter would be examined and until such examination is complete and a decision is

taken about the fitness of the employee or his alternate employment, the intervening

period would be treated as leave without pay and the earned leave on the earlier job

would be carried forward to the new job.

2.17. Considering that the scope of the Writ Petitions had expanded as a result

of the Impugned Circular, at the hearing of the Petitions on 31st January, 2020, this

Court passed the following Order :

 11

Nit 11 / WP-9 762-2019- Fi na l_ B . 0 7.2020

«The Learned Advocate appearing for the Petitioners states

that he has instructions to impugn only clause 11 of the new
Circular dated 2.Jl'd January) 2020. He is therefore allowed to
amend the above Writ Petitions to that extent within a period of
two weeks from today. The tests of all the fourteen Petitioners
shall be carried out within a period of two weeks from today) as
per the Circular dated 2.Jl'd January) 2020. Stand over to 14h
February) 2020.''

2.18. Pursuant to the aforesaid liberty granted by this Court, the Writ Petitions

came to be amended to incorporate a challenge to Clause 11 of the Impugned Circular,

inter alia on the ground that Clause 11 of the Impugned Circular is ultra vires Section

20 of the 2016 Act.

3. Appearing for the Petitioners, Ld. Advocate Mr. K.N. Shermale

submitted that the Impugned Circular is (i) unconstitutional and violative of Articles

14, 15 and 21 of the Constitution oflndia; and (ii) ultra vires the provisions of the

2016 Act and particularly Section 20 thereof (Section 47 of the 1995 Act). Therefore,

according to Mr. Shermale, the Petitioners are entitled to a writ ordering and declaring

that Clause 11 of the Impugned Circular is arbitrary and illegal. Further, that MSRTC

ought to be ordered and directed to pay back wages to the Petitioners from the date

their services were terminated until such time that the Petitioners are provided with

alternative jobs by MSRTC in compliance with the 2016 Act.

 12

Nit 12 / WP-9 762-2019- Fi na l_ B . 0 7.2020

4. Appearing for MSRTC, Mr. Nitesh Bhutekar submitted that under

Clause No.4 of the 2016 Impugned Circular, once a driver has been declared unfit by

reason of colour blindness, such driver is not entitled to an alternative service or job

with MSRTC. Therefore, the Petitioners' services were terminated by MSRTC. He

further submitted that in or around 2019, it became necessary for MSRTC to frame a

policy which is without ambiguity and vagueness, on the basis of which policy,

MSRTC can take decisions with respect to the disabled employees whilst safeguarding

the interests of MSRTC. That on 7th October, 2019, a committee was constituted to

suggest a proper procedure to be followed by MSRTC in respect of the disabled

employees mainly to implement Section 47 of the 1995 Act (Section 20 of the 2016

Act). During the pendency of the Writ Petitions, MSRTC came out with the

Impugned Circular, pursuant to which the Writ Petitions were amended to assail

Clause 11of the Impugned Circular.

5. It is noted that MSRTC has not filed an additional Affidavit in Reply to

the amended Writ Petitions to deal with the challenge to Clause 11 of the Impugned

Circular.

6. Dr. Milind Sathe, the Learned Senior Advocate appearing as amicus-

curiae took this Court through the 1995 Act and the 2016 Act. He also took us through

various decisions of the Supreme Court of India, this Court, the Delhi High Court,

the Madras High Court and the Allahabad High Court, which Courts have had the

occasion to consider the aforesaid legislations. On the basis of the law laid down in
 13

Nit 13 / WP-9 762-2019- Fi na l_ B . 0 7.2020

these decisions and in the facts of the present matter, Dr. Sathe put forth the following

submissions :

6.1. Clause 11 of the Impugned Circular is ultra vires the 2016 Act as well as

violative of Articles 14, 15 and 21 of the Constitution oflndia.

6.2. The orders of termination of services of the Petitioners are liable to be

set aside.

6.3. MSRTC ought to be directed to reinstate the Petitioners in service with

alternate jobs, as indicated in the Disability Certificates issued to the Petitioners,

within a period of 4 weeks.

6.4. MSRTC ought to be directed to pay back wages from the date of

discontinuation of services of the Petitioners as drivers, till they resume as employees

of MSRTC on the new / alternate jobs.

7. Prior to dealing with the legality and/or validity of the Impugned

Circular, we propose to first deal with the legal framework relevant to the present

matter. This would be the 2016 Act and the 1995 Act. Firstly, it is pertinent to note

that prior to the enactment of the 2016 Act, the issue of providing equal opportunities

and protection of rights to persons with disabilities was covered under the 1995 Act.

Section 47 of the 1995 Act under Chapter VII with the heading "non-discrimination",

provided that there shall be no discrimination in Government employment. Section 47

reads thus:
 1
Nitin 14 / 54 WP-9762-2019-Final _ 13.07.2020.doc

"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.
Provz'ded 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 m 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.))

8. On 13th December, 2006, the United Nations General Assembly adopted

a Convention on "Rights of Persons with Disabilities". India is a signatory to this

Convention which it ratified on rt October 2007. Realizing the requirement to protect

the rights of the persons with disabilities and India's commitment to the Convention
 1
Nitin 15 / 54 WP-9762-2019-Final_13.07.2020.doc

of the United Nations General Assembly, the Legislature repealed the 1995 Act and

brought in the 2016 Act to give effect to the United Nations Convention on the Rights

of Persons with Disabilities and for matters connected therewith or incidental thereto.

9. Considering the scope of these Writ Petitions, we deem it appropriate to

reproduce the Preamble of the 2016 Act, which reads thus :

"An Act to give effect to the United Nations Convention

on the Rights of Persons with Disabilities and for
matters connected therewith or incidental thereto.
Whereas the United Nations General Assembly adopted
its Convention on the Rights of Persons with Disabilities
on the 13th day of Decembe 2006)·
And whereas the aforesaid Convention lays down the
following principles for empowerment of persons with
disabiHtiesJ
(a) respect for inherent dignity) individual autonomy
including the freedom to make ones own choices) and
independence of persons)·
(b)non-discrimination)·
(c) full and effective participation and inclusion zn
society)·
(d) respect for difference and acceptance of persons with
disabiHties as part of human diversity and humanity)·
(e)equality of opportunity)·
(f) accessibility)·
(g) equaHty between men and women)·
(h) respect for the evolving capacities of children with
 1
Nitin 16 / 54 WP-9762-2019-Fina1 _ 13 .07.2020.doc

disabilities and respect for the right of children with

disabilities to preserve their identities)·
And whereas India is a signatory to the said
Convention)·
And whereas India ratified the said Convention on the
1st day of October_, 2 00 0·
And whereas it is considered necessary to implement the
Convention aforesaid.
Be it enacted by Parliament in the Sixty-seventh Year of
the Republic of India as follows: JJ

As can be discerned from the aforesaid Preamble, the 2016 Act is a beneficial

Legislation that prioritizes and recognizes the benefits provided for under the 2016

Act. As compared to the 1995 Act, the 2016 Act confers higher benefits and provides

for additional categories of disability that it seeks to protect. In addition, it emphasises

the right to equality of opportunity, access to justice and various other rights such as

free education, etc. In our opinion, the interpretation and construction of any

provisions of the 2016 Act would therefore have to be in aid of and in furtherance of

this legislative intent.

10. In order to assess the scope and intent of the 2016 Act, it would also be

necessary to reproduce the following definitions and provisions from the 2016 Act :

"2(k) 'Government establishment' means a

corporation established by or under a Central Act or
State Act or an authority or a body owned or controlled
 17

Nit WP-9762-2019-Final _ B .07.202 0.doc

17 /

or aided by the Government or a local authority or a

Government company as defined in section 2 of the
Companies Act.) 2013 and includes a Department of the
Government."
''2(r) 'Person with benchmark disability' means a
person with not less than forty per cent of a specified
disability where specified disability has not been defined
in measurable terms and includes a person with
disability where specified disability has been defined in
measurable terms.) as certified by the certifying
authority."
"2(s) 'Person with disability' means a person with
long term physica0 mental.) intellectual or sensory
impairment which.) in interaction with barriers.) hinders
his full and effective participation in society equally
with others."
''2(t) 'Person with disability having high support
needs' means a person with benchmark disability
certified under clause (a) of sub-section (2) of section 58
who needs high support"
''2(y) 'Reasonable accommodation' means necessary
and appropriate modification and adjustments.) without
imposing a disproportionate or undue burden in a
particular case.) to ensure to persons with disabilities the
enjoyment or exercise of rights equally with others."
''2(za) 'Rehabilitation' refers to a process aimed at
enabling persons with disabilz'ties to attain and
maintain optimal.) physical.) sensory.) intellectua0
 18

Nit WP-9762-2019-Final _ B .07.202 0.doc

18 /

psychological environmental or social function levels."

''20. Non-discrimination in employment.- (1) No

Government establishment shall discriminate

against any person with disability in any matter
relating to employment:
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) exempt any establishment from the
provisions of this section.
(2) Every Government establishment shall provide
reasonable accommodation and appropriate barrier
free and conducive environment to employees with
disability.
(3) No promotion shall be denied to a person merely
on the ground of disability.
(4) No Government establishment shall dispense
with or reduce in rank, an employee who acquires a
disability during his or her service:
Provided that, if an employee after acquiring
disability is not suitable for the post he was
holding, shall 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,
 19

Nit WP-9762-2019-Final _ B .07.202 0.doc

19 /

whichever is earlier.
(5) The appropriate Government may frame policies for
posting and transfer of employees with disabilities. "
(emphasis supplied)

As can be seen from the aforesaid provisions, a person diagnosed with a disability

cannot be subjected to discrimination, if such disability was acquired during the course

of employment. If a person suffers from disability acquired during the course of

employment, the Government establishment is required to provide reasonable

accommodation and also an appropriate barrier free and conducive environment to the

employee. The person diagnosed with a disability shall not be denied any promotion

merely on the ground of such disability, nor shall the services of such a person be

dispensed with, or he be reduced in rank on account of such disability. On acquiring

such disability, if the person is considered to be unsuitable for the job he was employed

for, such person is to be employed/absorbed in any other post and if no such post is

available, he is to be kept on supernumerary post, until a suitable post is made

available or until he attains the age of superannuation, whichever is earlier.

11. The 1995 Act as well as the 2016 Act have been discussed and analysed

in a series of decisions of the Hon'ble Supreme Court of India, as well as in the

decisions of the various High Courts.

1. In the case of Nandkumar Narayanrao Godhmare V/s. State of

 20

Ni 20 / WP-9762 -2019- Fi na l_ l 3.07 . 202

Maharashtra & Ors.1, the Appellant was handicapped because of colour blindness.

Though he was selected by the Public Service Commission his appointment was not

made on account of his handicap. He approached the Maharashtra Administrative

Tribunal ('MAT') by filing Original Application No. 884 of 1993, which was disposed

off against him by a Judgment and Order dated 20 th

February, 1994. In the Civil

Appeal filed by him, the Hon'ble Supreme Court granted him relief by directing the

Respondents to provide him with an alternative post. The Order of the Hon'ble

Supreme Court is reproduced hereunder :

"1. Leave granted.

2. Admittedly) the appellant is handicapped because of colour

blindness. He was admittedly selected by the Public Service

Commission but appointment could not be made on account of
his handicap. When the matter came up on 27-3-1995, this
Gour; while issuing notice) passed order as follows :
((Petitioner should also give the nature of the duties he has to
perform and whether his colour-blindness would interfere with
the discharge of his duties. Respondents also would state in this
behalf of their stand. If it t's needed) they can also send the
petitioner for medical examination by an expert Government
Ophthalmologist or Board.JJ
Despite the orde the Government took no action in that behalf
On the other hand) the appellant had filed on 2-5-1995 an
affidavit detailing that as per the information he had secured)
there were 35 posts in the Department and only five posts

1 (1995) 6 Supreme Court Cases 720

 2
Nit 21 / WP-9762-2019-Final _B

required perfect visi·on without colour-blindness. Those five posts

are mentioned in the affidavit. In other posts) colour-blindness
was not an impediment for him to be appointed.
3. Under these circumstances) we deem it just and proper that
the Government should consider the case of the appellant to be
appointed to any of the posts of Agricultural Officer of Class II
Service other than the 5 posts mentioned by him in his affidavit.
The appellant should enclose a copy of this affidavit filed before
us to the Department concerned for considering his case.
Appointment should be made within two months from the date
of the receipt of this order.
4. The appeal is allowed. No costs. JJ

In the case of Kuna[ Singh Ws. Union of India & Anr. 2 , the Appellant

was recruited as a constable in the Special Service Bureau ('SSB'). When he was on

duty, he suffered an injury in his left leg which had to be amputated on account of

gangrene, which had developed from the injury. By an Order dated 20 th

November,

1998, he was invalidated from service by the Respondents on the basis of the report of

the Medical Board, Kullu, under which he was declared permanently incapacitated for

further service. He therefore filed the Writ Petition before the High Court of H.P. at

Shimla, challenging the validity and correctness of the said Order. The said Writ

Petition was dismissed by the High Court by its Judgment and Order dated 21st April,

1999, holding that he had been permanently invalidated on the basis of the medical

2 (2003) 4 Supreme Court Cases 524

 2
Nit 22 / WP-9762-2019-Final _B

opinion and as such there was no scope for him to continue any further in service of

any kind in SSB. The Appellant impugned the Judgment and Order of the High Court

by filing Civil Appeal No. 1789 of 2000 before the Hon'ble Supreme Court. The said

Civil Appeal was allowed by the Hon'ble Supreme Court on 13 th February, 2003 with a

direction to the Respondent employer to give reliefs to the Appellant in terms of

Section 47 of the 1995 Act. The relevant extracts of paragraphs 9 and 12 of the

Judgment and Order dated 13th February, 2003 are reproduced hereunder:

"9 ... ... ... ... ..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 benefitsj 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
 2
Nit 23 / WP-9762-2019-Final _B

employer shall not dispense with or reduce in rank an employee

who acquires a dt"sability 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.
12. Mere[y 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 permanent[)' incapacitated to
continue in service without considering the effect of other
provisions of Section 47 of the Act.''

In the case of Anil Kumar Mahajan V/s. Union of India & Ors.3, the

Appellant, an IAS Officer, was appointed in the service of Government of Bihar on 12th
3 (2013) 7 Supreme Court Cases 243
 2

Nit 24 I WP-9762-2019-Final _ B

July, 1977. From 17th February, 1988 to 20th February, 1988, whilst he was posted as

Additional Secretary - cum - Editor of the State Gazetteer, Bihar at Patna, he was

placed under suspension and thereafter by an Order dated 24th February, 1988, his

suspension was continued till further orders. The Order of suspension was revoked

only on 24th February, 1990. He had moved the Central Administrative Tribunal,

Patna Bench in Original Application No. 288 of 1991 and Original Application No. 238

of 1991, seeking various reliefs, which were granted in his favour, by orders dated 22 nd

June, 1992 and 10th October, 1992 respectively. He was again placed under suspension

on 20th May, 1993 and subjected to departmental enquiry by the Member, Board of

Revenue and Enquiry Officer, who framed charges against him. In the departmental

enquiry, an allegation was made that the Appellant was mentally sick. Allegations of

indiscipline, being irresponsible and misbehaviour were also made against him. The

finding given in the enquiry which went on for about 11 years, was that the Appellant

was insane and an Order of compulsory retirement was passed on 15th October, 2007.

The Appellant filed a Writ Petition before the Delhi High Court, which was dismissed

as withdrawn by his Advocate. The Appellant had also preferred an application being

OA No. 2784 of 2008 before the Central Administrative Tribunal, Principal Bench,

New Delhi, wherein he challenged the departmental proceedings. No reliefs were

granted therein in favour of the Appellant. In the SLP filed by the Appellant before

the Hon'ble Supreme Court, the Supreme Court whilst analyzing the various

provisions of the 1995 Act, more particularly Section 47, interalia held that there is
 2
Nitin 25 I 54 WP-9762-2019-Fina1_ 13 . 07.2020.doc

prohibition imposed under Section 47 to dispense with, or reduce in rank, an

employee who acquires a disability during his service. The Hon'ble Supreme Court

also held that even if it is presumed that the Appellant had become insane, as held by

the Enquiry Officer, mental illness being one of the disabilities under Section 2(i) of

the 1995 Act, under Section 47 it was not open to the Respondents to dispense with, or

reduce in rank, the Appellant who acquired a disability during his service. Since at the

time of hearing the matter before the Hon'ble Supreme Court in the year 2013, the

Appellant was superannuated from service (i.e. on 31 st July, 2012), the Hon'ble

Supreme Court observed that there was no question of reinstatement of the Appellant.

However, the Hon'ble Supreme Court proceeded to set aside the Order of compulsory

retirement of the Appellant dated 15th October, 2007, passed by the Respondent; the

Order dated 22nd December, 2008 passed by the Central Administrative Tribunal,

Principal Bench, New Delhi in O.A. No. 2784 of 2008 and the Order dated 20th April,

2010 passed by the High Court of Delhi, and remitted the case to the Respondents,

with a direction to treat the Appellant as continued in service till the date of his

superannuation and to pay him his full salary minus the subsistence allowance already

received for the period from the date of initiation of departmental proceedings till

the date of compulsory retirement. Further, the Respondents were directed to pay to

the Appellant his full salary from the date of compulsory retirement till the date of

superannuation in view of the first and second provisos to Section 47 of the 1995 Act.

Paragraphs 20, 21 and 22 of the said decision are relevant and reproduced hereunder :
 26

Ni 26 I WP-9762-2019- Fi nal_ l 3.07.2020.doc

"20. The appellant was appointed tn the service of the

respondents as an !AS Officer and joined in the year 1977. He
served for 30 years till the order of his compulsory retirement
was issued on 15-10-2007. It is not the case of the respondents
that the appellant was insane and in spite of that he was
appointed as an /AS Officer in 1977. Therefore) even if it is
presumed that the appellant became insane) as held by the
enquiry officetj mental illness being one of the disabilities under
Section 2(i) of the 1995 Act_, under Section 47 it was not open to
the respondents to dispense with) or reduce in rank of the
appellant) who acquired a disability during his service. If the
appellant_, after acquiring disability was not suitable for the post
he was holding) should have been shifted to some other post with
the same pay scale and service benefits. Furthery if it was not
possible to adjust the appellant against any post_, the respondents
ought to have kept the appellant on a supernumerary post until
a suitable post is available ory until the appellant attained the
age of superannuation whichever was earlier.
21. In view of the aforesaid finding) we are of the view that it
was not open to the authorities to dispense with the service of the
appellant or to compulsorily retire him from service. The High
Court also failed to notice the relevant facts and without going
into the merits allowed the counsel to withdraw the writ petition
merely on the bast's of the finding of the enquiry officer. In fact
the High Court ought to have referred the matter to a Medical
Board to find out whether the appellant was insane and if so
found) in that case instead of dismissing the case as withdrawn)
the matter should have been decided on merits by appointing an
 27

Ni 27 I WP-9762-2019- Fi nal_ l 3.07.2020.doc

advocate as amicus curiae.

22. It is informed at the Bar that in normal course the appellant
would have superannuated from service on 31-7-2012. In that
view of the matte now there is no question of reinstatement of
the appellant though he may be entitled for consequential
benefits including arrears of pay. Having regard to the facts and
finding given above) we have no other option but to set aside the
order of compulsory retirement of the appellant dated 15-10-
2007 passed by the respondents)· the order dated 22-12-2008
passed by the Central Administrative Tribunal) Principal
Bench) New Delhi in OA No. 2784 of 2008 and the impugned
order dated 20-4-2010 passed by the High Court of Delhi in
Anil Kumar Mahajan v. Union of India [Anil Kumar
Mahajan v. Union of India) WP (C) No. 2622 of 2010) decided
on 20-4-2010 (Del)} and the case is remitted to the respondents
wt'th a direction to treat the appellant as continued in the service
till the date of his superannuation. The appellant shall be paid
full salary minus the subsistence allowance already received for
the period from the date of initi"ation of departmental proceeding
on the ground that he was suffering from mental illness till the
date of compulsory retirement. The appellant shall also be
provided with full salary from the date of compulsory retirement
till the date of superannuation in view of the first and second
provisos to Section 47 of the 1995 Act. If the appellant has
already been superannuated) he will also be entitled to full
retiral benefits counting the total period in service. The benefits
shall be paid to the appellant within three months) else the
respondents will be liable to pay interest at the rate of 6% per
 28

Nit WP-9762-2019-Final _ B .07 .2020.doc

28 /

annum from the date the amount was due) till the actual
payment."

IV. In the case of Vishnu s/o. Shahurao Bangar V/s. The Divisional

Controller & Ors.4 the Petitioner, a Bus Conductor, was on duty when he met with an

accident and lost both his legs. By communication dated 24th January, 2008, the

MSRTC Management concluded that the Petitioner was unfit to perform his duties

and his service was terminated. Thereafter, the MSRTC issued a letter dated 2nd

February, 2009 stating that the Petitioner would be considered to be on leave without

pay from 25th January, 2008 to 13th January, 2009 and he would be re-employed by the

said Order to work as a Peon. The Petitioner was considered to be in employment only

with effect from 14th February, 2009. The Petitioner approached the Labour Court

interalia contending that he was not paid his wages from 24th January, 2008 till 13th

January, 2009, on the ground that the said period was treated as leave without pay.

The Labour Court by its Judgment dated 26th December, 2018 held that the claim of

the Petitioner was not maintainable, as there was no pre-existing right and there was

no pre-adjudication. The Petitioner impugned the Judgment passed by the Labour

Court before this Court at its Aurangabad Bench, when the Advocate for the MSTRC

strenuously submitted on instructions that the MSTRC had issued a Circular dated

10th September, 2008, clause (3) of which provides that an employee who had suffered

disability would be deemed to be on leave without wages for the period during which

4 Writ Petition No. 3772 of 2019

 29

Nit WP-9762-2019-Final _ B .07 .2020.doc

29 /

he was out of employment. The Learned Single Judge whilst recording the insensitive

conduct of the MSRTC towards its employee and his anguish qua the Circular of

MSRTC dated 10th September, 2008, interalia directed the MSRTC to pay to the

Petitioner wages due to him for the period 24th January, 2008 to 13th January, 2009.

Paragraphs 3, 7, 11, 12, 13, 14 and 15 are relevant and reproduced hereunder:

"3. This case is an example of the MSRTC showing

insensitivity and apathy towards an employee) who has suffered
an accident while on duty) arising out of and in the course of his
employmen squarely covered by the Employee's Compensation
Ac 1923) the Rights of Persons with Disabilities Act 2016 and
the Persons with Disabilities (Equal Opportunities) Protectt'on
of Rights and Full Participation) Ac 1995(1 of 1996).
7. The Persons with Disabilities (Equal Opportunities)

Protection of Rights and Full Participation) Ac 1995 (1 of

1996) defines a disability u/s 2{t)J by which a person) who is
sufferingfrom a disability not less than 40% shall be considered
eligible for an alternate employment. The provisions of the said
Act clearly indicate that an employee) as like this petitioner_,
should have been immediately granted alternate employmen
the date on which he had reported for duties after being
discharged from the hospital and declared to be fit to undertake
an alternate suitable employment. This being the law and an
obligation on the part of the MSRT could have been
considered by the Labour Court purely for calculating the non
payment of wages.
11. It is) therefore) obvious that the Management has refused to
 30
WP-97 62-2019-Final_ B .07.2020.doc
Nit 30 I

give work to the petitioner

for the period 24/01/2008 ti'll 13/01/2009 and he was deemed
to have been reinstated on 14/01/2009. He would be entitled for
his last drawn wage as would have been payable to him as a Bus
Conductor_, had he been in employment in January 2008.
Under the 1996 Ac; his last pay has to be protected. This also
was lost sight of by the Labour Court.
12. ln view of the above) this petition is partly allowed.
Application (IDA) No.2/2012 is partly allowed. The
respondent/Corporation is liable to pay an amount of
Rs.2)74)534/- by way of compensation for the period
11/11/2002 up to 24/01/2008) by adjusting the amounts which
have already been paid to the petitioner. This amount shall be
paid within 8 (eight) weeks from today.
13. In so far as his termination from 24/01/2008 and
subsequent re-employment is concerned) it would presume that
there is continuity of service and he is entitled to his salary as
was payable to him tn January 2008. The
respondent/Corporation shall therefore calculate his salary from
24/01/2008 till 13/01/2009 and shall pay the said amount
within 8 weeks from today) failing which) the Vice Chairman
and Managing Director_, Mumbai/respondent No.2 shall pay
interest@ 6% from January 2009 till the amount is paid) from
his own salary account) since he is the sanctioning authority.
14. Before I part with this matter_, I am recording my anguish
about the Corporation having relied upon a circular dated
10/9/2008. The policy devised by the Corporation) concerning
the unfortunate employees who have suffered disabilities on
 31

Nit WP-9762-2019-Final_B.07. 202 0.doc

31 /

account of the act of nature or by way of an accident and for

wht'ch they cannot be held personally liable) demonstrates
insensitivity on the part of the Corporation. I can understand a
case wherein an employee is a drunkard or is addicted to vices
and on account of his own conduct, has invited illness. He can
be treated differently without showing any sympathy. However,
the employees who have suffered disabilities for no fault on their
part or have suffered an accident leading to disabilities) will
have to be treated with more sensitivity and a human touch.
15. Considering the above) the learned Registrar (Judicial) of
this Court is directed to place a copy of this judgment before the
Hon'ble Cabinet Minister for Transport in the State of
Maharashtra) who is ex-officio Chairman of the MSRTC., to
adopt steps to ensure that the said policy is properly devised in
order to take care of such employees) who have suffered accidents
and disabilities, more so, keeping in view the Rights of Persons
with Disabilities Act, 2016.JJ

v. In the case of Union of India and Ors. V/s. Pramod Sadashiv Thakre5,

the Respondent was appointed as Civil Mechanical Transport Driver by the

Petitioner - employer, after being found fit by the Authority on the basis of a

medical certificate issued by the Civil Surgeon. On 29th August, 2005, his services

were terminated on the ground that he was found to be suffering from colour

blindness. Aggrieved by the said Order, the Respondent approached the Central

Administrative

Tribunal. The Tribunal vide its Order dated 24th February, 2011, held that the
5 2012 (1) Mh. L.J. ) 738
 32

Nit WP-9762-2019-Final_B.07. 202 0.doc

32 /

impugned order of termination passed by the Petitioner - employer is in violation of

the provisions of the Section 47 of the 1995 Act. The Petitioners impugned the Order

of the Tribunal before this Court at its Nagpur Bench. It was argued before the Court

by the Learned Advocate appearing for the Petitioners, that the services of the

Respondent cannot be said to be protected by Section 47 of the 1995 Act, since that

Section protects only a person who has acquired disability during the course of his

employment. It was submitted that the Respondent's colour blindness is congenital,

as colour blindness is, and must have been there even when the Respondent was

initially appointed. This Court rejected the aforesaid contention of the Advocate

appearing for the Petitioners and held that the Respondent incurred disability during

the course of his employment and his services are liable to be protected and dismissed

the Writ Petition. Paragraphs 5 and 6 of the Judgment dated 19th October, 2011 are

relevant and reproduced hereunder :

"5. We have no doubt that if the respondent was Colour Blind

from birth and continued to be so when he was employed, he
could not have been said to be a person who acquired a?ry
disability in the course of his employment. Howevery in the
present case1 there is no evidence to that effect. In the first
place1 no medical evidence is placed on record to establish that
colour blindness can only be congenital and cannot be
acquired. Secondly1 there is no evidence that the respondent
was Colour Blind when he was employed. On the other hand, the
petitioners accepted the respondent's fitness by relying on the
certificate
 33

WP-9762-2019-Fina33 _ 13 .07.2020.doc
Nit 33 /

granted to him by Civil Surgeon) Nagpur who certified him as

normal. The certificate that he was normal must be taken to
refer to every functional aspect of the respondent including his
eyesight. We are informed that the petitioners do not and in any
case did not insist for a proforma in which medical fitness
entries to be recorded and do not appear to have referred back
the respondent's case for considering whether his vision was
normal or he is Colour Blind neither did the petitioners
administer any test to the respondent for determining whether
he is Colour Blind. The petitioners can hardly claim to have
established that the respondent was Colour Blind from birth
and) therefore) also Colour Blind on the date of employment.
We are) therefore) of the view that respondent is entitled to
protection by the Act. It was) however_, urged by Mr. SundaramJ
learned counsel for the petitioners) that the respondent's services
cannot be protected by section 47 of the Act since the respondent
was a temporary employee on probation. Section 47 of the Act_,
reproduced above) protects the services of an employee and
makes no distinction between the nature of the services it
protects. The purpose and intention of the provisions is to protect
an employee from unemployment on the ground that he has
incurred disability. Parliament has in its wisdom accommodated
the possibility that an employee may not be able to discharge the
duties of office prescribed for him and to that effect a provision
has been made that an employee shall be employed in some other
post with same benefits.
6. In the circumstances) we are of the view that the respondent

incurred disability during the course of his employment and his

 34
Nitin 34 I 54 WP-9762-2019-Fina1 _ 13 . 07 .2020.doc

services are liable to be protected. The order of termination)

which is made only on the ground that the respondent has been
found to be Colour Blind is rightly quashed and set aside by the
Central Administrative Tribunal.
We Find no merit in the pett'tt'on. The same is) therefore)
dismissed. JJ

v1. In the case of Arvind S/o. Shankarrao Khodke V/s. The Regional Director

of Municipal Administration, Nagpur Division, Nagpur 6 , the Petitioner was qualified

for appointment to the post of Assistant Teacher and was appointed as such by the

Respondent Municipal Council on 2nd August, 1985. The Petitioner had a fall on 19 th

October, 2002 and suffered brain injury. He resumed service on 2 nd May, 2003, after

he was declared 'fit' by the Medical Board. Thereafter, on two occasions he was

declared 'medically fit' to perform his duties. The Petitioner was thereafter

suspended from service by an Order dated 19 th

- 25th April, 2005 and was again

referred to the Medical Board. The Medical Board in October-November, 2005

certified that the Petitioner was not fit to carry out his duties as Assistant Teacher but

was fit to carry out duties of a clerical nature. Thereupon the Petitioner was

compulsorily retired from service by an Order dated 2nd December, 2005. After his

suspension and before he was compulsorily retired, the Petitioner had filed a revision

Application before the Regional Director of the Municipal Administration. The

Revision filed by the Petitioner was dismissed. The Petitioner challenged the order of

dismissal passed by the Regional Director of the Municipal Administration and the
6 Judgment dated 10th January, 2017 passed in Writ Petition No. 3496 of 2007
 35

Nit WP-9762-2019-Final _ B .07 .2020.doc

35 /

Order dated 2nd December, 2005, whereby he was compulsorily retired before this

Court at its Nagpur Bench. This Court after referring to the provisions of Section 47

of the 1995 Act, set aside the Order of compulsory retirement and directed the

Municipal Council to reinstate the Petitioner in service and grant him an alternate

job which he could effectively attend. This Court also made it clear that if the

Respondent Municipal Council had no vacancy, the Petitioner shall be adjusted

against a post which may be supernumerary, until a suitable post is available or till

he attains the age of superannuation, in terms of the second proviso to Section 47 (1)

of the 1995 Act. However, the Court declined to accept the submission made on

behalf of the Petitioner that the Petitioner would be entitled to the entire arrears of salary

and other monetary benefits for the period during which he was out of service, on

the ground that the Petitioner had at no point of time requested any of the authorities

to permit him to perform a clerical job and to protect the pay / wages of the

Petitioner. The following are the relevant extracts from the said Judgment:

"5.............Though the petitioner was not'fit'for doing the job of

Assistant Teacher_, according to the opinion of the Medical Board,
the petitioner was 'fit' to perform the duties of clerical nature.
The Municipal Council was obliged, in 'View of the proPisions of
Section 47 of the Act to giPe an alternate job to the petitioner and
protect his pay scale. Instead of complying with the proPisions of
section 47 of the Act, the Municipal Council illegally dispensed
with the services of the petitioner solely on the ground that the
petitioner was not 'fit' for performing his du#es as an Assistant
 36

Nit WP-9762-2019-Final _ B .07 .2020.doc

36 /

Teacher. It is rightly submitted on behalf of the petitioner that the

services of an employee cannot be dispensed with) and if an
employee is not su#able for performance of the duties of the post
that he is holding after acquiring the disability) he should be
shifted to some other post with the same pay scale and service
benefits. Instead of asking the petitioner to perform the duties of a
clerk or any other job which the petitioner could have peiformedJ
the Chief Officer of the Municipal Council illegally terminated
the services of the petitioner by passing the order of compulsory
retirement. Unfortunately) the petitioner did not canvass before
the Regional Director of Municipal Administration that he was
entitled to remain in service) if not as an Assistant Teacher on
some other post., in view of the provisions of section 47 of the Act.
The provisions of the Act were not brought to the notice of the
authority and hence without considering the provisions of the
Act., the authority dismissed the revision filed by the petitioner by
considering the other submissions made on behalf of the parties.
6. Though in the circumstances of the case) a direction to the
respondent - Municipal Council to reinstate the petitioner on
some other post would be necessary) we are not inclined to accept
the submission made on behalf of the petitioner that the
petitioner would be entitled to the entire arrears of salary and the
other monetary benefits for the period during which he was out of
service. On a reading of the documents annexed to the petition
and the affidav#-in-replyJ we find that it was not the case of the
petitioner at any point of time before any of the Authorities that
the petitioner should be permitted by the Municipal Council to
peiform a clerical job and the pay of the petitioner should be
 37
WP-9762-2019-Final _ B .07 .202 0.doc
Nit 37 I

protected. This was not the case canvassed by the petitioner even
before the Regional Director of Municipal Administration and
for the first time in this writ petition) the petitioner has relied on
the provisions of section 47 of the Act for protection of his services.
Had the petitioner referred to the provisions of section 47 of the
Act and had asked the respondent-Municipal Council to absorb
the petitioner on some other post or job) which the petitioner could
have performed and protect his pay) the Municipal Council may
have applied its mind to the said provisions and the submission of
the petitioner. However_, this was not done. In Jae in some of the
communications) it is the case of the petitioner that the petitioner
was 'fit' to perform his job as an Assistant Teacher and his
services should not be dispensed with. Admittedly the petitioner
has not worked for a period of more than ten years and
considering the weak financial condition of the Municipal
Counci where even the salary of the regular employees is not
paid regularly., it would not be proper to direct the Municipal
Council to pay the entire arrears of salary to the petitioner. In the
circumstances of the case and in the interest of justice) in our
view) the Municipal Council could be directed to pay 50% of the
arrears of salary and the other monetary benefits to the petitioner
for the period during which he was out of service.
7. Hence., for the reasons aforesaid) the writ petition is partly

allowed. The impugned orders are quashed and set aside. The
Municipal Council is directed to reinstate the petitioner in service
within two weeks and grant him an alternate job on which he can
effectively work. If the respondent-Municipal Council does not
have a vacancy) the respondent-Municipal Council should adjust
 38
WP-9762-2019-Final _ B .07 .202 0.doc
Nit 38 I

the petz'tz'oner against a post., which may be supernumerary., until

a suitable post i's available or tz'll he attains the age of
superannuatz'on in terms of the second proviso to sectz'on 47 (1) of
the Act. It i's needless to mention that the petitz'oner would be
entitled to the regular salary on the expiry of period of fifteen
days even if he is not reinstated. The petitioner would be entitled
to only 50% of the arrears of salary. The Munidpal Coundl is
directed to pay the arrears of salary to the petitz'oner within ten
weeks. The pension paid to the petitioner should be adjusted
towards the amount payable to the petitioner towards the arrears
of salary. Rule i's made absolute in the aforesaid terms with no
order as to costs. "

vu. In the case of Managing Director, UPSRTC V/s. Suresh Singh the

Allahabad High Court whilst dealing with the interplay between the 1995 Act and the

2016 Act and the contractual obligations between employers and employees, held as

under:

"32.Therefore., according to us., all contracts entered into

between the parties., including the present contract., are., in the
first place., law governing the rights and oblt'gations between
them. However., that law is always subject to any modification
or alteration that may be made by the statutory law. Thus., once
the legislature stepped in and provided certain protections to all
employees of 'establishment that too on fundamental and
cherished Constitutional principle of equality irrespective of

7 2019 sec Online All 4538

 39
Nitin 39 / 54 WP-9762-2019-Final _ B .07.2020.doc

their status as permanent or temporary employees or contract

employees etc.) the prz'vate contract between the parties stood
modified to that extent) by operation of law. No plea/objection as
to re-writing of the contract may be sustained as may result in
defeating that statutory law. For that reason) we respecifully
disagree with the view taken by the Delhi High Court in
the above noted decisions.
33. Thus) for reasons given above) the 'Old Act) and the 'New
Act) apply to the benefit of all classes of employees in an
'establishment: Howeve while giving effect to the provisions of
those enactments) the equality may be enforced and established
between two employees - one with physical disability and
another without_, both belonging to same 'class of service: The
equality sought may never transcend the otherwise pre-existing
valid 'class categorization) or 'status) of the employee
concerned) neither to his benefit not to his prejudice.
34. Thus) in the case of the 'petitioner-employee) having suffered
physical disability during his engagement by the 'corporation
the non-discrimination clause introduced and enforced) first by
'Old Act) and now by the 'New Act modified the contractual
obligation of the 'corporation J under the contract pre-existing
between the parties so as to oblige the latter to continue to engage
the 'petitioner-employee) and to not dispense with his services as
a contract employee for the surviving contract period. In other
words) even as a contract employee) the 'petitioner-employee)
continued to be an employee of the 'corporationJ and the benefit
of the Persons with Disabilities (Equal Opportunities)
Protection of Rights and Full Participation) Act_, 1995 and The
 4
Nitin 40 I 54 WP-9762-2019-Final_ l 3.07.202 0.doc

Rights of Persons with Disabilities Act) 2016) enured to him

keeping intact his status as a contract employee.
35. Consequently) the present appeal is partly allowed with an
observation that the 'corporation J shall pass a fresh order_,
in accordance with the directions issued by the learned Single
Judge) within a period of one month from today treating the
petitioner-employee Suresh Singh to be an existing contract
employee. He may accordingly be assigned such other job on
contract basis) for such period) as may be available with the
'corporation) in view of his 40% permanent physical disability.
The 'corporation J would pass a reasoned and speaking order in
that regard) within a period of two months from today.
36. Appeal allowed in part.JJ

vm. In G. Muthu V/s. MTNSTC (Madhurai) Limited8, the Appellant had joined

the service of the Respondent as a Driver on 26 th August, 1993. His services were

regularized from 24th July, 1994. Thereafter, he was promoted as Senior Driver. The

Respondent by its Order dated 4 th February, 2002 directed the Appellant to appear

before the Regional Medical Board, Madurai, to ascertain whether he is fit to work as a

driver. He appeared before the Medical Board on 19th February, 2002. The Medical

Board examined his physical fitness and submitted its report dated 19 th February,

2002, wherein it was stated that since he has colour blindness he is unfit to work as a

driver. Based upon the report of the Medical Board, the Respondent issued him a

show cause notice dated 7th March, 2002 calling upon him to submit his explanation as
B 2007 (1) L.W. 146
 4
Nitin 41 / 54 WP-9762-2019-Final _ 13 .07 .2020.doc

to why he should not be discharged from the post of driver on medical ground. He

submitted his explanation on 7th March, 2002, wherein he requested the Respondent

to provide suitable alternative employment with continuity of service and pay

protection. The Respondent by its Order dated 26th March, 2020 discharged him

from service on medical grounds. He submitted his representation to the Respondent

on 26th March, 2002 requesting the Respondent to sympathetically consider his case

for suitable alternative employment. Since there was no response from the

Respondent, he once again submitted a representation on 30th August, 2004 stating

that his discharge from the service is contrary to the provisions of the 1995 Act. Since

the Appellant did not receive any response from the Respondent, the Appellant, in the

year 2004, challenged the Order of the Respondent dated 26 th March, 2002, before the

Single Judge of the Madras High Court, which challenge was rejected by an Order

dated 6th January, 2005 on the sole ground of latches. The Appellant filed an Appeal

before the Division Bench of the Madras High Court. Before the Appeal Court, the

Learned Counsel for the Respondent vehemently argued that the Appellant had not

properly explained the delay in the matter. The Learned Counsel for the Respondent

also contended that the Parliament has chosen only seven illnesses under the category

of disability under Section 2(i) of the Act and hence the intention of the Parliament is

that a person with any disability cannot claim benefit under the Disability Act, but only

the persons affected with illnesses enumerated in Section 2(i) of the Act can claim

disability and protection under the Act. The Division Bench of the Madras High
 4
Nitin 42 / 54 WP-9762-2019-Final _ B .07.2020.doc

Court rejected the submissions made by the Respondent and allowed the Appeal.

Paragraphs 14, 15, 19, 21, 22, 26 and 27 of the Judgment are relevant and therefore

reproduced hereunder :

"14. Having heard the learned counsel for the appellant as well
as the respondent on the above referred to contentions) namely)
as regards the distinctive application of S. 47 de hors the
definition of ccdisabilityJJ as found in S.2(i)J we find force in the
submission of the learned counsel for the appellant. As pointed
out by the learned counsel for the appellant) the law makers
have used a different set of expressions in S. 47, which deals
with an employee who aacquires a disability)) in contra
distinction to the expression awith disability)) which has been
used in the various provisions falling under Chaps) IV to VII of
the Act. On a close reading of such provisions contained in
Chaps. IV to vn we could discern that the benefits which are
conferred under those provisions are to be made available to
persons who already suffer a disability. In other words) the two
categories) namely) a person awith a disability)) is always
distinguishable from a person who later on a acquires a
disability) Viewed in that respect) it will have to be held that
the expressiona disability)) used in S. 47 of the Act can) by no
stretch of imagination) be equated with a case of a persona with
the disability) Once the saz'd distinction as between S. 47 and
the various other provisions of the Ac in particular the
provisions fallz'ng under Chaps. IV to VI is understood) then
the stand of the appellant can be better appreciated. A close
reading of S. 47 of the Act would show that the benefit granted
 4

Nit 43 I WP-9762-2019-Final _

under the said provision was to be conferred on a serving

employee in an establishment who acquires a "disability))
durz'ng such service. When such "disability)) was acqut'red by
him during his service) the Parliament thought it fit to ensure
that his service is not in any way affected because of acquisition
of such a "disability)) and with that view) directed that he
should be shifted to some other post with the same pay-scale and
service benefits and in the event of such alternate post not being
available.) to create a supernumerary post until a suitable post is
available or till he attains the age of superannuation. Sub
section (2) of S. 47 goes one step further and stipulates that no
promotion should also be denied to a person merely on the
ground of his disability. A further reading of the last proviso to
S. 47 disclose that it is for the appropriate Government to take
note of the type of work carried on in any establishment and
issue a . notification exempting such establishment from the
provisions of the said S. 47y subject to such conditions if any.
Therefore) unless and otherwise such a specific notification
exempting an establishment depending upon the nature and
type of work of that establishment ts issued.) no other
establishment covered by the provisions of the Act can take a
different stand.
15. Having regard to the special features contained in the said
S. 47y providing for such a special benefit to an existing
employee in an establishment when he acquires a "disability)) as
held by us earlie'i the application and implementation of the
said provision wt"ll have to be ensured independent of various
other benefits provided under the various other provisions
 4

Nit 44 I WP-9762-2019-Final _

falling under Chaps. IV to VII of the Act whicn are meant for
persons ((with disabilz'ty) Having regard to the said distinctive
features contained in S. 47 of the Act) as compared to the other
provisions.) we are of the considered opinion that the context in
which the benefit has been conferred under S. 47 stands apart
from the context of all other provisions where various other
benefits have been conferred. In other words) we are of the firm
view that the opening set of expressions contained in the
definition clause.) namely S. 2.J which denotes ccunless the context
otherwise requires)) squarely gets attracted to S. 47 and
therefore the definition of ((disability)) as defined under S. 2(i)
cannot be blindly applied to the term ((disability)) which has
been used in S. 47 of the Act. In other words) the term
((disability)) used in S. 47 can draw support not only in respect
of the defined ((disabilities)) as contained in S. 2(i) of the Act
but will also encompass such other ((disabilities)) which would
disable a person from performing the work which he held
immediately prior to acquisition of such ((disability)) and
thereby entitle him to avail the benefits conferred under the said
provision for having acquired such a ((disability. JJ
19. Therefore.) as argued by the learned counsel for the
appellant.) while the provisions contained in Chaps. IV to VII of
the Act deals with c1Jersons with disability)) S. 47 alone deals
with ((an employee who acquires a disability during his service)
The said provision clearly says that no establishment shall
dispense with or reduce in rank.) an employee who acquires a
disability during his service which means that the person who is
employed in an establishment when he acquires a disability.) his
 4

Nit 45 I WP-9762-2019-Final _

services cannot be dispensed with or there should be any

reduction in rank. Further, the proviso to the said section clearly
states that if he is not suitable for the post he could be shifted to
some other post with the same scale of pay and benefits. If it is
not possible) he could be kept on a supernumerary post until a
post is available or he attains the age of superannuation
whichever is earlier. The said provision further states that no
promotion shall be denied to any person merely on the ground of
his disability. Thus) if we apply S. 47 of the said Act., the order
of discharge passed by the respondent) dated 26 March) 2002)
has no leg to stand.
21. Thus) according to the learned counsel for the appellant) if
there is any anomaly or injustice) then the Court has to look into
the purpose for which the statute has been brought and should
try to give a meaning) which would adhere to the purpose of the
statute. We find full force in the submission of the learned
counsel for the appellant. The object which S. 47 of the Act
purports to achieve is that appropriate provision should be made
for the employees employed in the establishments who acquire a
disabt'lity during their service. While having this in mind) in
construing the material provisions of such an Act) if two views
are reasonably possible) the Courts should prefer the view which
helps the achievement of the object. If the words used in the
provisions of the Act are capable of a narrow or broad
construction) each construction is being reasonably possible) and
t't appears that the broad construction would help the
furtherance of the object., then it would be necessary to prefer
such construction. The other circumstance which has to be borne
 46
Nitin 46 I 54 WP-9762-2019- Fin al_ l 3 . 07.2020 .doc

in mind in interpreting the provisions of the Act is that the

interpretation should not concentrate on the word used therein.
In construing the relevant provisions of the Act what the Courts
have to ask themselves is) «is the object for which the Act has
been introduced) achieved?11 Thus, the interpretation shall fit
in with the object for which the Act has been introduced and it
should be considered in the light of the object intended to be
achieved.
22. Welfare legislations are meant to ensure benefits to the
needy. They should be interpreted in such a way so that the
purpose of the legislation is allowed to be achieved. Even
assuming that there is any ambiguity in the provisions of the
Act, in view of the object underlying the Act, it requires a
reasonable interpretation of S. 2(i) of the sai'd Act so as to make
it applicable to the case on hand. The legislative purpose must be
noted and the statute must be read asa whole.
26. After analysing the entire provisions of the Act and also
various decisions cited above) we feel that the Court cannot shut
its eyes if a person knocks at its door claiming relief under the
Act. In a welfare State like India) benefits of benevolent
legislation cannot be denied on the ground of mere hyper
technicalities. When the law makers have conferred certain
privileges on a class of persons) like in this case to a disabled
person) the duty t's cast upon the judiciary to oversee that the
authorities or the persons to whom such a power is conferred)
enforce the same in letter and spirit for which such enactment
has been made. In the present case on han the appellant
has been discharged on the ground of «colour blindness))
without
 47
Nitin 47 I 54 WP-9762-2 019-Final _ B .07.2020.doc

providing alternative job as per S. 47 of the Act_, which is

unjustified and unreasonable. Hence) the order of the
respondent dated 26 March) 2002 discharging the appellant on
medical grounds has no leg to stand. The appellant is entitled to
the protection under S. 47 of the Act. He should ave been given
a suitable alternative employment with pay protection) instead
of discharging him from service on the ground of "colour
blindness.)) Viewed from any angle) the order of the learned
Single Judge dismissing the writ petition on the mere ground of
!aches without considering the claim of the appellant on merits
is liable to be set aside.
27. In fine) the writ appeal is allowed setting aside the order of
the learned Single Judge in W.P. No. 70 of 200 dated 6
January) 2005, thereby we set aside the order of the respondent_,
dated 26 March) 2002) discharging the appellant from service
on medical grounds. During the pendency of the writ appeal by
an interim ordetj dated 29 April) 2005, the appellant was given
employment as helper based on G.O. Ms. No. 74 Transport
Department_, dated 2 July) 1981. Since we have held that the
appellant is entitled for the benefit of alternate employment as
provided under S. 47 of the Act_, we direct the respondent to
provide such alternate employment to the appellant from the
date of his discharge with pay protection) continuity of service)
back-wages and all other attendant benefits for which he is
legally entitled to. No costs.
Writ appeal allowed. "
 48
Nitin 48 / 54 WP-9762-2019-Fina1 _ 13 .07 .2020.doc

12. As can be seen from the aforesaid decisions, the provisions of the 1995

Act as well as the 2016 Act have been interpreted and applied in a beneficial manner

from time to time in a series of decisions delivered by the Supreme Court of India

and the various High Courts.

13. When we apply the aforesaid principles laid down by the various Courts

to the present !is, we note that the Petitioners have admittedly acquired their

disability, viz. colour blindness during the course of their employment. As a result,

the Petitioners are now entitled to alternate jobs as "reasonable accommodation"

under Section 20 of the 2016 Act. This position has been accepted by MSRTC

whilst issuing the Impugned Circular. Further, the record reflects that the

Petitioners' services were terminated between April 2018 to June 2018 and since

then neither have the Petitioners been employed elsewhere, nor have they

received any wages and/or compensation. We are cognizant of the fact that many

of the Petitioners before us have dependants and children who may be going to

school, etc. This is in addition to the Petitioners' daily requirement for sustenance.

As repeatedly held by the Courts from time to time, whilst construing a provision

of a social and beneficial enactment, such as the 2016 Act, that intends to provide

disabled persons with equal opportunities, protection of rights and full

participation, the Court must adopt a view that advances the intent and object of

the legislation and a view which serves its purpose must be preferred as opposed to

one which obstructs and paralyses the intent, object and purpose of such Act. In our
 49
Nitin 49 I 54 WP-9 762-2019- Fi na l_ l 3 . 07. 2020 .doc

view, a socio-economic legislation such as the 2016 Act, ought to be interpreted

liberally. Courts ought to adopt different yardsticks and measures for interpreting

socio-economic statutes, as compared to penal or taxing statutes.

14. After having considered the provisions of the 1995 Act and the 2016 Act

in detail, we are of the considered view that the language of Section 20 is plain and

certain, and casts statutory obligations on the employer to protect an employee

acquiring disability during service.

15. Keeping in line with this construction of a beneficial legislation and also

keeping in mind the unequivocal and express provisions of Section 20 of the 2016

Act, we deem it only legal, humane and just that the Petitioners be granted alternate

jobs as also back wages from the date their services were discontinued.

16. In so far as Clause 11 of the Impugned Circular is concerned, as stated

hereinabove, Clause 11 provides that after an employee is diagnosed with a

disability, the matter would be examined and until such examination is complete

and a decision is taken about the fitness of the employee or his alternate

employment, the period would be treated as leave without pay and the earned leave

on the earlier job would be carried forward to the new job. We find that this

imposition is unjust and violates the Petitioners' fundamental rights on various

levels. Firstly, it is clearly arbitrary and violative of Article 14 of the Constitution, in

as much as the Act mandates the State establishments to shift the employee

acquiring the disability during service to another suitable post, if he cannot be

 50
Nitin 50 / 54 WP-9 762-201 9- Fina l_ 1 3 .0 7 . 2020 .doc

continued in the post originally held by him; the Act does not envisage any time lag

for shifting him to such other post ; and in any event, if the employer establishment

takes time to decide on such alternative employment, the employee cannot be made

to suffer. Clause 11 of the Impugned Circular leaves it to the employer

establishment i.e. MSRTC to decide on the alternative employment at its own

sweet will and at its own leisure, leaving the employee to suffer deprivation of wages

for no fault of his.

17. Further, this arbitrary imposition under Clause 11 is in the teeth of the

provisos to Sub Section (4) of Section 20 of the 2016 Act which read as under :

"Provided that, if an employee after acquiring disability is

not suitable for the post he was holding., shall 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 avallable or he
attains the age of superannuatz'on., whichever is earlier. "

18. The above provisos mandate that the Petitioners ought to be shifted to

an alternative post with MSRTC with the same pay scale and service benefits and if

it is not possible for MSRTC to adjust the Petitioners against any post immediately,

they have to be kept on supernumerary posts until suitable posts are available or

they attain the age of superannuation, whichever is earlier. This is a mandate

under the 2016 Act and a statutory right granted to the Petitioners. This right

cannot be
 51
Nitin 51 / 54 WP-9762-2019-Final _ B .07 .2020.doc

violated by Clause 11 of the Impugned Circular. MSRTC has no right and is in fact

prohibited from treating the intervening period between the medical examination

and a decision thereon as leave without pay. The very idea of restoring an employee

to a position with the same pay scale and service benefits which he or she held

before dismissal or removal or termination of service implies that the employee will

be put in the same position in which he would have been but for the action of

termination taken by the employer.

19. The financial, emotional and mental injuries suffered by the bus

drivers before us today cannot simply be measured in terms of money. As a result

of the discontinuance of their services by MSRTC, the Petitioners' lost their

source of income with immediate effect. As a result, not only have the Petitioners

suffered economically but so have their respective families, who have been deprived

of their source of sustenance. This would include deprivation of nutritious food,

education as also general advancement in life. These sufferings will continue till

the date MSRTC provides the Petitioners with alternative positions. In our

opinion, the Petitioners' reinstatement by MSRTC entitles the Petitioners to claim

back wages in their entirety. The denial of back wages to the Petitioners who have

suffered due to their disability would amount to indirectly punishing the

Petitioners concerned and rewarding MSRTC by relieving them of their obligation to

pay back wages. This would be wholly inequitable and unjust. This would be in

contravention of the 2016 Act, as also in contravention of the Constitution of India.

As a result, we are of the

 52
Nitin 52 / 54 WP-9762-2019-Fina1_13.07.2020 .doc

considered opinion that Clause 11 of the Impugned Circular is ultra vires the 2016

Act, as also violative of Article 14 of the Constitution of India. Therefore, we

hereby quash and set-aside Clause 11 of the Impugned Circular.

20. Keeping in line with the mandate of Section 20 of the 2016 Act, we order

and direct MSRTC to provide each one of the Petitioners with alternative posts

having the same pay scale and service benefits as their earlier position. This exercise

must be completed within a period of 4 weeks from the date of this Order.

21. As a result of the aforesaid decision, we order and direct MSRTC to pay

back wages to each of the Petitioners from the date that their respective services

were discontinued until the date that they have been provided with an alternative

position in compliance with Section 20 of the 2016 Act. These wages must be

credited to the Petitioners' accounts within a period of 6 weeks from the date of

pronouncement and uploading of this Order. However, whilst computing the

amount of back wages to be paid to the Petitioners, we grant liberty to MSRTC to

ascertain whether or not any of the Petitioners were otherwise employed during this

intervening period and if so, MSRTC would be at liberty to deduct the amount of

wages that the Petitioners may have earned from their alternative employment

whilst paying out the back wages. In the event MSRTC wishes to undertake this

exercise, such exercise should be completed within a period of 4 weeks from the

date of pronouncement and uploading of this order.

 5
Nitin 53 I 54 WP-9762-2019-Final _ 13.07 .2020.doc

22. The Writ Petitions are disposed of accordingly. We appreciate the

assistance rendered by Dr. Sathe as Amicus Curiae in the matter .

23. Whilst parting, we anticipate that the Impugned Circular albeit in the

absence of Clause 11 which we have struck down hereinabove, may still give rise to

grievances suffered by various other persons employed by MSRTC who may be

diagnosed with disabilities in the future. In order to prevent their suffering, we

propose the following measures which could be taken into consideration when

MSRTC implements the Impugned Circular:

1. Upon an employee acquiring a disability, the medical examination and

disability certification ought to be completed within a period of 4 weeks of such

disability coming to the notice of MSRTC;

11. Within 4 weeks from the aforesaid medical examination and disability

certification, the employee shall be provided with an alternative position with

MSRTC in accordance with Section 20 of the 2016 Act;

m. The time elapsed in conducting the medical examination, certifying the

disability and providing an alternative position shall be treated as part of the

persons' employment and the employee shall be paid back wages for this entire

period expeditiously;

1v. MSRTC will be at liberty to test the veracity or otherwise of disability

certificates that may be furnished. However, this exercise of ascertaining the

truthfulness of these disability certificates must in any event be completed within a

 5
Nltin 54 I 54 WP-9762-2019-Ailcil_l3.07.2020.doc

period of 2 weeks from the date of submission of such disability certificates. In the

event that MSRTC fails to find any fault with the said disability certificates, the

principles enulllerated hereinabove ought to apply.

24. MSRTC will have to iinplenient these 'gtiiclelines in their entirety,

keeping in mind the intent, objective and spirit of the2016 Act.

(R.I.CHAGLA,J.) (S.J KATHAWALLA,J.)

TRUE COPY
 55

IN THE SUPREME COURT OF INDIA

CIVILAPPELLATE JURISDICTION
(Under Article 136 of the Constitution of India)
SPECIAL LEAVE PETITION (CIVIL] NO. OF 2020
(WITH PRAYER FOR INTERIM RELIEF)
(ARISING OUT OF FINAL JUDGEMENT AND ORDER DATED
16/07/2020 IN WRIT PETITION NO. 9762, 9763, 9764, 9765, 9767,
10192, 23126, 23128, 23131, 23132, 23225, 26405, 30670 OF 2019
AND 703 OF 2020 PASSED BY THE HIGH COURT OF
JUDICATURE AT BOMBAY]
BETWEEN:
POSITION OF PARTIES
BEFORE THE BEFORE THIS
HON'BLE HON'BLE COURT
HIGH COURT

1. THE STATE OF RESPONDENT PETITIONER NO. 1

MAHARASHTRA NO. 2
ROAD AND
TRANSPORT
CORPORATION
THROUGH ITS
DIVISIONAL
CONTROLLER
MAHARASHTRA
WAHATUK
BHAVAN
DR. ANANDRAO
NAIRMARG
MUMBAI-440008
MAHARASHTRA

2. THE DIVISIONAL RESPONDENT PETITIONER NO. 2

CONTROLLER NO. 3
STATE TRANSPORT
CORPORATION
NASHIK
TALUK AND
DISTRICT NASHIK
MAHARASHTRA
 56

3. THE DEPOT RESPONDENT PETITIONER NO. 3

MANAGER NO. 4
STATE TRANSPORT
CORPORATION
PIMPALGAON
(BASMAT)
TALUK NASHIK
DISTRICT NASHIK
MAHARASHTRA

AND

1. VIKAS S/O PETITIONER RESPONDENT NO. 1

KHANDERAO
KENG
AGE44 YEARS
R/O WARWANDI [CONTESTING]
POST
DHAKAMBE
TALUK DINDORI
DISTRICT
NASHIK
MAHARASHTRA

2. STATE OF RESPONDENT RESPONDENT NO. 2

MAHARASHTRA NO. 1 [CONTESTING]
THROUGH ITS
PRINCIPAL
SECRETARY
MAHARASHTRA
STATE
TRANSPORT
DEPARTMENT
MANTRALAYA
MUMBAI-400032

SPE IAL LEAVE PETITION CIVIL NO. OF 2020

(WITH PRAYER FOR INTERIM RELIEF)
(ARJSING OUT OF FINAL JUDGEMENT AND ORDER DATED
16/07/2020 IN WRIT PETITION NO. 9763 OF 2019 PASSED BY
THE HIGH COURT OF JUDICATURE AT BOMBAY]
 57

BETWEEN:
POSITION OF PARTIES
BEFORE THE BEFORE THIS
HON'BLE HON'BLE COURT
HIGH COURT

1. THE STATE OF RESPONDENT PETITIONER NO. 1

MAHARASHTRA NO. 2
ROAD AND
TRANSPORT
CORPORATION
THROUGH ITS
DIVISIONAL
CONTROLLER
MAHARASHTRA
WAHATUK
BHAVAN
DR. ANANDRAO
NAIRMARG
MUMBAI-440008
MAHARASHTRA

2. THE DIVISIONAL RESPONDENT PETITIONER NO. 2

CONTROLLER NO. 3
STATE TRANSPORT
CORPORATION,
NASHIK, TALUK
AND DISTRICT
NASHIK
MAHARASHTRA

3. THE DEPOT RESPONDENT PETITIONER NO. 3

MANAGER NO. 4
STATE TRANSPORT
CORPORATION
MANMAD,
TALUK MANMAD
DISTRICT NASHIK
MAHARASHTRA

AND
 58

1. SAMADHAN S/O PETITIONER RESPONDENT NO. 1

BABAJI PAWAR
AGE 43 YEARS,
R/O VARANE, POST-
SONAJ, TQ. [CONTESTING]
MALEGAON
DISTRICT NASHIK
MAHARASHTRA

2. STATE OF RESPONDENT RESPONDENT NO. 2

MAHARASHTRA NO. 1 [CONTESTING]
THROUGH ITS
PRINCIPAL
SECRETARY
MAHARASHTRA
STATE TRANSPORT
DEPARTMENT
MANTRALAYA
MUMBAI-400032

SPECIAL LEAVE PETITION [CIVIL] NO. OF 2020

(WITH PRAYER FOR INTERIM RELIEF)
(ARISING OUT OF FINAL JUDGEMENT AND ORDER DATED
16/07/2020 IN WRIT PETITION NO. 9764 OF 2019 PASSED BY
THE I-IlGH COURT OF JUDICATURE AT BOJvIBAY]
BETWEEN:
POSITION OF PARTIES
BEFORE THE BEFORE THIS
HON'BLE HON'BLE COURT
HIGH COURT

1. THE STATE OF RESPONDENT PETITIONERNO.1

MAHARASHTRA NO. 2
ROAD AND
TRANSPORT
CORPORATION
THROUGH ITS
DIVISIONAL
CONTROLLER
MAHARASHTRA
WAHATUK
 59

BHAVAN
DR. ANANDRAO
NAIR MARG
MUMBAI-440008
MAHARASHTRA

2. THE DIVISIONAL RESPONDENT PETITIONER NO. 2

CONTROLLER NO. 3
STATE TRANSPORT
CORPORATION
NASHIK, TQ. AND
DISTRICT NASHIK
MAHARASHTRA

3. THE DEPOT RESPONDENT PETITIONER NO. 3

MANAGER NO. 4
STATE TRANSPORT
CORPORATION
MANMAD, TQ.
MANMAD
DISTRICT NASHIK
MAHARASHTRA

AND

1. SANJAY S/O PETITIONER RESPONDENT NO. 1

RAGHO DUKALE
AGE52 YEARS
R/O GHODEGAON
CHONDI- [CONTESTING]
JALGAON, TQ.
MALEGAON,
DISTRICT
NASHIK
MAHARASHTRA

2. STATE OF RESPONDENT RESPONDENT NO. 2

MAHARASHTRA NO. 1 [CONTESTING]
THROUGH ITS
PRINCIPAL
SECRETARY
 60

MAHARASHTRA
STATE
TRANSPORT
DEPARTMENT
MANTRALAYA
MUMBAI-400032

SPECIAL LEAVE PETITION (CIVIL] NO. OF 2020

(WITH PRAYER FOR INTERIM RELIEF)
(ARISING OUT OF FINAL JUDGEMENT AND ORDER DATED
16/07/2020 IN WRIT PETITION NO. 9765 OF 2019 PASSED BY
THE HIGH COURT OF JUDICATURE AT BOMBAY]
BETWEEN:
POSITION OF PARTIES
BEFORE THE BEFORE THIS
HON'BLE HON'BLE COURT
HIGH COURT
1. THE STATE OF
MAHARASHTRA RESPONDENT PETITIONER NO. 1
ROAD AND NO. 2
TRANSPORT
CORPORATION
THROUGH ITS
DIVISIONAL
CONTROLLER
MAHARASHTRA
WAHATUK
BHAVAN
DR. ANANDRAO
NAIR MARG
MUMBAI-440008
MAHARASHTRA

2. THE DIVISIONAL RESPONDENT PETITIONER NO. 2

CONTROLLER NO. 3
STATE TRANSPORT
CORPORATION
NASHIK, TQ. AND
DISTRICT NASHIK
MAHARASHTRA
 61

3. THE DEPOT RESPONDENT PETITIONER NO. 3

MANAGER NO. 4
STATE TRANSPORT
CORPORATION
KALWAN, TQ.
KALWANDISTRICT
NASHIK
MAHARASHTRA

AND

1. RAMCHANDRA S/O PETITIONER RESPONDENT NO. 1

SAVALIRAM
CHAVAN AGE 42
YEARS, RIO
BORDAIWAT, TQ. [CONTESTING]
KALWAN,
DISTRICT NASHIK
MAHARASHTRA

2. STATE OF RESPONDENT RESPONDENT NO. 2

MAHARASHTRA NO. 1 [CONTESTING]
THROUGH ITS
PRINCIPAL
SECRETARY
MAHARASHTRA
STATE TRANSPORT
DEPARTMENT
MANTRALAYA
MUMBAI-400032

SPECIAL LEAVE PETITION [CIVIL] NO. OF 2020

(WITH PRAYER FOR INTERIM RELIEF)
(ARISING OUT OF FINAL JUDGEMENT AND ORDER DATED
16/07/2020 IN WRIT PETITION NO. 9767 OF 2019 PASSED BY
THE HIGH COURT OF JUDICATURE AT BOMBAY]
BETWEEN:
POSITION OF PARTIES
BEFORE THE BEFORE THIS
HON'BLE HON'BLE COURT
HIGH COURT
 62

1. THE STATE OF RESPONDENT PETITIONER NO. l

MAHARASHTRA NO. 2
ROAD AND
TRANSPORT
CORPORATION
THROUGH ITS
DIVISIONAL
CONTROLLER
MAHARASHTRA
WAHATUK
BHAVAN
DR. ANANDRAO
NAIRMARG
MUMBAI-440008
MAHARASHTRA

2. THE DIVISIONAL RESPONDENT PETITIONER NO. 2

CONTROLLER NO. 3
STATE TRANSPORT
CORPORATION
NASHIK TQ. AND
DISTRICT NASHIK
MAHARASHTRA

3. THE DEPOT RESPONDENT PETITIONER NO. 3

MANAGER NO. 4
STATE TRANSPORT
CORPORATION TQ.
MALEGAON,
DISTRICT NASHIK
MAHARASHTRA

AND

1. ASHOK S/O BUWAJI PETITIONER RESPONDENT NO. l

PAGAR AGE 54
YEARS RIO AT
POST WADNER,
(KHAKURDI), TQ. [CONTESTING]
MALEGAON,
DISTRICT NASHIK
 63

MAHARASHTRA

2. STATE OF RESPONDENT RESPONDENT NO. 2

MAHARASHTRA NO. 1 [CONTESTING]
THROUGH ITS
PRINCIPAL
SECRETARY
MAHARASHTRA
STATE TRANSPORT
DEPARTMENT
MANTRALAYA
MUMBAI-400032

SPECIAL LEAVE PETITION (CIVIL] NO. OF 2020

(WITH PRAYER FOR INTERIM RELIEF)
(ARISING OUT OF FINAL JUDGEMENT AND ORDER DATED
16/07/2020 IN WRIT PETITION NO. 10192 OF 2019 PASSED BY
THE HIGH COURT OF JUDICATURE AT BOMBAY]
BETWEEN:
POSITION OF PARTIES
BEFORE THE BEFORE THIS
HON'BLE HON'BLE COURT
HIGH COURT

1. THE STATE OF RESPONDENT PETITIONERNO.1

MAHARASHTRA NO. 2
ROAD AND
TRANSPORT
CORPORATION
THROUGH ITS
DIVISIONAL
CONTROLLER
MAHARASHTRA
WAHATUK BHAVAN
DR. ANANDRAO
NAIRMARG
MUMBAI-440008
MAHARASHTRA

2. THE DIVISIONAL RESPONDENT PETITIONER NO. 2

CONTROLLER NO. 3
STATE TRANSPORT
CORPORATION
 64

NASHIK, TQ.
AND
DISTRICT NASHIK
MAHARASHTRA

3. THE DEPOT RESPONDENT PETITIONER NO. 3

MANAGER NO. 4
STATE TRANSPORT
CORPORATION
NASHIK-1 TQ.
NASHIK DISTRICT
NASHIK
MAHARASHTRA

AND

1. ASHOK S/O BARKU PETITIONER RESPONDENT NO.

SANAP, 1
AGE55YEARS
R/0
MAKHMALABAD
RAOD, UDAY [CONTESTING]
COLANY, NEAR
MANE
SCHOOL,GITKANCH,
PANCHAVATI,
NASHIK TQ. AND
DISTRICT NASHIK
MAHARASHTRA

2. STATE OF RESPONDENT RESPONDENT NO.

MAHARASHTRA NO.1 2
THROUGH ITS (CONTESTING]
PRINCIPAL
SECRETARY
MAHARASHTRA
STATE TRANSPORT
DEPARTMENT
MANTRALAYA
MUMBAI-400032

SP CIAL LEAVE PETITION CIVIL NO. OF 2020

(WITH PRAYER FOR INTERIM RELIEF)
 65

(ARISING OUT OF FINAL JUDGEMENT AND ORDER DATED

16/07/2020 IN WRIT PETITION (L) NO. 23126 OF 2019 PASSED BY
THE HIGH COURT OF JUDICATURE AT BOMBAY]
BETWEEN:
POSITION OF PARTIES
BEFORE THE BEFORE THIS
HON'BLE HON'BLE COURT
HIGH COURT

1. THE STATE OF RESPONDENT PETITIONER NO. 1

MAHARASHTRA NO. 2
ROAD AND
TRANSPORT
CORPORATION
THROUGH ITS
DIVISIONAL
CONTROLLER
MAHARASHTRA
WAHATUK
BHAVAN
DR. ANANDRAO
NAIR MARG
MUMBAI-440008
MAHARASHTRA

2. THE DIVISIONAL RESPONDENT PETITIONER NO. 2

CONTROLLER NO. 3
STATE TRANSPORT
CORPORATION,
NASHIK, TQ. AND
DISTRICT NASHIK
MAHARASHTRA

3. THE DEPOT RESPONDENT PETITIONER NO. 3

MANAGER NO. 4
STATE TRANSPORT
CORPORATION
NASHIK-1 TQ. AND
DISTRICT NASHIK
MAHARASHTRA

AND
 66

1. DAGA S/O PETITIONER RESPONDENT NO. 1

BHAURAO
BHANDANE
AGE56YEARS
RIO MORANE, [CONTESTING]
POST- AMBASON,
TQ. SATANA,
DISTRICT NASHIK
MAHARASHTRA

2. STATE OF RESPONDENT RESPONDENT NO. 2

MAHARASHTRA NO. 1 (CONTESTING]
THROUGH ITS
PRINCIPAL
SECRETARY
MAHARASHTRA
STATE TRANSPORT
DEPARTMENT
MANTRALAYA
MUMBAI-400032

SPECIAL LEAVE PETITION [CIVIL] NO. OF 2020

(WITH PRAYER FOR INTERIM RELIEF)
(ARISING OUT OF FINAL JUDGEMENT AND ORDER DATED
16/07/2020 IN WRIT PETITION (L) NO. 23128 OF 2019 PASSED BY
THE HIGH COURT OF JUDICATURE AT BOMBAY]
BETWEEN:
POSITION OF PARTIES
BEFORE THE BEFORE THIS
HON'BLE HON'BLE COURT
HIGH COURT

1. THE STATE OF RESPONDENT PETITIONERNO.1

MAHARASHTRA NO. 2
ROAD AND
TRANSPORT
CORPORATION
THROUGH ITS
DIVISIONAL
CONTROLLER
MAHARASHTRA
 67

WAHATUK
BHAVAN
DR. ANANDRAO
NAIRMARG
MUMBAI-440008
MAHARASHTRA

2. THE DIVISIONAL RESPONDENT PETITIONER NO.

2 CONTROLLER NO. 3
STATE TRANSPORT
CORPORATION
NASHIK, TQ. AND
DISTRICT NASHIK
MAHARASHTRA

3. THE DEPOT RESPONDENT PETITIONER NO.

3 MANAGER NO. 4
STATE TRANSPORT
CORPORATION
MALEGAON,
TQ. AND
MALEGAON,
DISTRICT NASHIK,
MAHARASHTRA
AND

1. RAJESH S/O PETITIONER RESPONDENT NO. 1

VITHAL PAWAR
AGE54YEARS
R/O AHILYADEVI
NAGAR, OMLAXMI [CONTESTING]
NIWAS, BEHIND
PRATAP NILL, TQ.
DHULE, DISTRICT
DHULE
MAHARASHTRA

2. STATE OF RESPONDENT RESPONDENT NO. 2

MAHARASHTRA NO. 1 [CONTESTING]
THROUGH ITS
PRINCIPAL
 68

SECRETARY
MAHARASHTRA
STATE TRANSPORT
DEPARTMENT
MANTRALAYA
MUMBAI-400032

SPECIAL LEAVE PETITION (CIVIL) NO. OF 2020

(WITH PRAYER FOR INTERIM RELIEF)
(ARISING OUT OF FINAL JUDGEMENT AND ORDER DATED
16/07/2020 IN WRIT PETITION (L) NO. 23131 OF 2019 PASSED BY
THE HIGH COURT OF JUDICATURE AT BOMBAY]
BETWEEN:
POSITION OF PARTIES
BEFORE THE BEFORE THIS
HON'BLE HON'BLE COURT
HIGH COURT

1. THE STATE OF RESPONDENT PETITIONER NO. 1

MAHARASHTRA NO. 2
ROAD AND
TRANSPORT
CORPORATION
THROUGH ITS
DIVISIONAL
CONTROLLER
MAHARASHTRA
WAHATUK
BHAVAN
DR. ANANDRAO
NAIRMARG
MUMBAI-440008
MAHARASHTRA

2. THE DIVISIONAL RESPONDENT PETITIONER NO. 2

CONTROLLER NO. 3
STATE TRANSPORT
CORPORATION
NASHIK, TQ. AND
DISTRICT NASHIK
MAHARASHTRA
 69

3. THE DEPOT RESPONDENT PETITIONER NO. 3

MANAGER NO. 4
STATE TRANSPORT
CORPORATION
MALEGAON, TQ.
MALEGAON
DISTRICT NASHIK
MAHARASHTRA

AND

1. HARICHANDRA S/O PETITIONER RESPONDENT NO. 1

MAHADU DESALE
AGE44 YEARS
RIO KALWADI, TQ.
MALEGAON, [CONTESTING]
DISTRICT NASHIK
MAHARASHTRA

2. STATE OF RESPONDENT RESPONDENT NO. 2

MAHARASHTRA NO. 1 [CONTESTING]
THROUGH ITS
PRINCIPAL
SECRETARY
MAHARASHTRA
STATE TRANSPORT
DEPARTMENT
MANTRALAYA
MUMBAI-400032

SPECIAL LEAVE PETITION (CIVIL] NO. OF 2020

(WITH PRAYER FOR INTERIM RELIEF)
(ARISING OUT OF FINAL JUDGEMENT AND ORDER DATED
16/07/2020 IN WRIT PETITION (L) NO. 23132 OF 2019 PASSED BY
THE HIGH COURT OF JUDICATURE AT BOMBAY]
BETWEEN:
POSITION OF PARTIES
BEFORE THE BEFORE THIS
HON'BLE HON'BLE COURT
HIGH COURT

1. THE STATE OF RESPONDENT PETITIONERNO.1

 70

MAHARASHTRA NO.
2 ROAD AND
TRANSPORT
CORPORATION
THROUGH ITS
DIVISIONAL
CONTROLLER
MAHARASHTRA
WAHATUK
BHAVAN
DR. ANANDRAO
NAIRMARG
MUMBAI-440008
MAHARASHTRA

2. THE DIVISIONAL RESPONDENT PETITIONER NO. 2

CONTROLLER NO. 3
STATE TRANSPORT
CORPORATION
NASHIK, TQ. AND
DISTRICT NASHIK
MAHARASHTRA

3. THE DEPOT RESPONDENT PETITIONER NO.

3 MANAGER NO. 4
STATE TRANSPORT
CORPORATION
MALEGAON, TQ.
MALEGAON
DISTRICT NASHIK
MAHARASHTRA

AND

1. NARAYAN DATTU PETITIONER RESPONDENT NO.1

LIDDAD S/O 44
YEARS R/O
TOKADE, TQ.
MALEGAON, [CONTESTING]
DISTRICT NASHIK
MAHARASHTRA
 71

2. STATE OF RESPONDENT RESPONDENT NO. 2

MAHARASHTRA NO.1 [CONTESTING]
THROUGH ITS
PRINCIPAL
SECRETARY
MAHARASHTRA
STATE TRANSPORT
DEPARTMENT
MANTRALAYA
MUMBAI-400032

SPECIAL LEAVE PETITION [CIVIL) NO. OF 2020

(WITH PRAYER FOR INTERIM RELIEF)
(ARISING OUT OF FINAL JUDGEMENT AND ORDER DATED
16/07/2020 IN WRIT PETITION (L) NO. 23225 OF 2019 PASSED BY
THE HIGH COURT OF JUDICATURE AT BOMBAY]
BETWEEN:
POSITION OF PARTIES
BEFORE THE BEFORE THIS
HON'BLE HON'BLE COURT
HIGH COURT

1. THE STATE OF RESPONDENT PETITIONER NO. 1

MAHARASHTRA NO. 2
ROAD AND
TRANSPORT
CORPORATION
THROUGH ITS
DIVISIONAL
CONTROLLER
MAHARASHTRA
WAHATUK
BHAVAN
DR. ANANDRAO
NAIRMARG
MUMBAI-440008
MAHARASHTRA

2. THE DIVISIONAL RESPONDENT PETITIONER NO. 2

CONTROLLER NO. 3
STATE TRANSPORT
CORPORATION
NASHIK, TQ. AND
 72

DISTRICT NASHIK
MAHARASHTRA

3. THE DEPOT RESPONDENT PETITIONER NO. 3

MANAGER NO. 4
STATE TRANSPORT
CORPORATION
NASHIK-1 TQ. AND
DISTRICT NASHIK
MAHARASHTRA

AND

1. KAILAS S/O SUDAM PETITIONER RESPONDENT NO. 1

KALE AGE 50
YEARS R/O N-41,
VA-2, 1716,
DHANLAXMI [CONTESTING]
CHOWK, SAVTA
NAGAR, CIDCO,
NASHIK, TQ. AND
DIST. NASHIK
MAHARASHTRA

2. STATE OF RESPONDENT RESPONDENT NO. 2

MAHARASHTRA NO. 1 [CONTESTING]
THROUGH ITS
PRINCIPAL
SECRETARY
MAHARASHTRA
STATE TRANSPORT
DEPARTMENT
MANTRALAYA
MUMBAI-400032

SPECIAL LEAVE PETITION (CIVIL] NO. OF 2020

(WITH PRAYER FOR INTERIM RELIEF)
(ARISING OUT OF FINAL JUDGEMENT AND ORDER DATED
16/07/2020 IN WRIT PETITION (L) NO. 26405 OF 2019 PASSED BY
THE HIGH COURT OF JUDICATURE AT BOMBAY]
BETWEEN:
POSITION OF PARTIES
 73

BEFORE THE BEFORE THIS

HON'BLE HON'BLE COURT
HIGH COURT

1. THE STATE OF RESPONDENT PETITIONER NO. I

MAHARASHTRA NO. 2
ROAD AND
TRANSPORT
CORPORATION
THROUGH ITS
DIVISIONAL
CONTROLLER
MAHARASHTRA
WAHATUK
BHAVAN
DR. ANANDRAO
NAIRMARG
MUMBAI-440008
MAHARASHTRA

2. THE DIVISIONAL RESPONDENT PETITIONER NO. 2

CONTROLLER NO. 3
STATE TRANSPORT
CORPORATION
NASHIK, TQ. AND
DISTRICT NASHIK
MAHARASHTRA

3. THE DEPOT RESPONDENT PETITIONER NO. 3

. }
MANAGER NO. 4
STATE TRANSPORT
CORPORATION
SATANA, TQ. AND
DIST. NASHIK
MAHARASHTRA

AND

1. GANGARAM S/O PETITIONER RESPONDENT NO. 1

NANAJI CHAVAN
AGE38YEARS
RIO NAMPUR TAL.
 74

SATANA, DIST. [CONTESTING]

NASHIK
,MAHARASHTRA

2. STATE OF RESPONDENT RESPONDENT NO. 2

MAHARASHTRA NO. 1 [CONTESTING]
THROUGH ITS
PRINCIPAL
SECRETARY
MAHARASHTRA
STATE TRANSPORT
DEPARTMENT
MANTRALAYA
MUMBAI-400032

SPECIAL LEAVE PETITION (CIVIL] NO. OF 2020

(WITH PRAYER FOR INTERIM RELIEF)
(ARISING OUT OF FINAL JUDGEMENT AND ORDER DATED
16/07/2020 IN WRIT PETITION (L) NO. 30670 OF 2019 PASSED BY
THE HIGH COURT OF JUDICATURE AT BOMBAY]
BETWEEN:
POSITION OF PARTIES
BEFORE THE BEFORE THIS
HON'BLE HON'BLE COURT
HIGH COURT

1. THE STATE OF RESPONDENT PETITIONER NO. 1

MAHARASHTRA NO. 2
ROAD AND
TRANSPORT
CORPORATION
THROUGH ITS
DIVISIONAL
CONTROLLER
MAHARASHTRA
WAHATUK
BHAVAN
DR. ANANDRAO
NAIRMARG
MUMBAI-440008
THROUGH ITS
MANAGING
 75

DIRECTOR
MAHARASHTRA

2. THE DIVISIONAL RESPONDENT PETITIONER NO. 2

CONTROLLER NO. 3
STATE TRANSPORT
CORPORATION
BULDHANA, TQ.
AND DIST
BULDHANA,
MAHARASHTRA

3. THE DEPOT RESPONDENT PETITIONER NO. 3

MANAGER NO. 4
STATE TRANSPORT
CORPORATION
JALEGEON
(JAMOD), TQ.
JALEGEON
(JAMOD), DIST
BULDHANA
MAHARASHTRA

AND

1. SANJAY S/O PETITIONER RESPONDENT NO. 1

RAMBHAU FASE
AGE 40 YEARS,
RIO K.R.
PATILNAGAR, [CONTESTING]
JALEGEON
(JAMOD) TAL.
JALEGEON
(JAMOD), DIST
BULDHANA
MAHARASHTRA

2. STATE OF RESPONDENT RESPONDENT NO. 2

MAHARASHTRA NO. 1 [CONTESTING]
THROUGH ITS
PRINCIPAL
SECRETARY
 76

MAHARASHTRA
STATE TRANSPORT
DEPARTMENT
MANTRALAYA
MUMBAI-400032

SPECIAL EAVE PETITION (CIVIL] NO. OF 2020

(WITH PRAYER FOR INTERIM RELIEF)
(ARISING OUT OF FINAL JUDGEMENT AND ORDER DATED
16/07/2020 IN WRIT PETITION NO. 703 OF 2020 PASSED BY THE
HIGH COURT OF JUDICATURE AT BOMBAY]
BETWEEN:
POSITION OF PARTIES
BEFORE THE BEFORE THIS
HON'BLE HON'BLE COURT
HIGH COURT

1. THE STATE OF RESPONDENT PETITIONER NO. 1

MAHARASHTRA NO. 2
ROAD AND
TRANSPORT
CORPORATION
THROUGH ITS
DIVISIONAL
CONTROLLER
MAHARASHTRA
I
WAHATUK
BHAVAN
DR. ANANDRAO
NAIRMARG
MUMBAI-440008
MAHARASHTRA

2. THE DIVISIONAL RESPONDENT PETITIONER NO. 2

CONTROLLER NO. 3
STATE TRANSPORT
CORPORATION
SATARA
TALUKAND
DISTRICT SATARA
MAHARASHTRA
 77

3. THE DEPOT RESPONDENT PETITIONER NO. 3

MANAGER NO. 4
STATE TRANSPORT
CORPORATION
PATAN
TALUKAND
DISTRICT SATARA
MAHARASHTRA
AND

1. ADINATH S/O PETITIONER RESPONDENT NO. 1

ANAND KUMBHAR
AGE MAJOR
R/OBELWADE
HAVELI TALUK [CONTESTING]
KARAD
DISTRICT SATARA
MAHARASHTRA

2. STATE OF RESPONDENT RESPONDENT NO. 2

MAHARASHTRA NO. 1 [CONTESTING]
THROUGH ITS
PRINCIPAL
SECRETARY
MAHARASHTRA
STATE TRANSPORT
DEPARTMENT
MANTRALAYA
MUMBAI-400032

To,
THE HON'BLE CHIEF JUSTICE OF INDIA
AND HIS LORDSHIP'S COMPANION JUSTICES
OF THE HON'BLE SUPREME COURT OF INDIA.

THE HUMBLE PETITION OF THE

PETITIONERS ABOVE NAMED

MOST RESPECTFULLY SHOWETH

 --:,
I . That the instant Special Leave Petition is being preferred by the
Petitioner against the common final judgment dated 16/07/2020
passed by the Hon 'ble High Court of Judicature at Bombay in Writ
Petition No. 9762, 9763, 9764, 9765, 9767, 10192, 23126, 23128,
23131, 23132, 23225, 26405, 30670 of 2019 and 703 of 2020
whereby clause 11 of the Circular dated 23/01/2020 issued by the
petitioner has been quashed.

2. QUESTIONS OF LAW
The present Special Leave Petition raises the following substantial
questions of law of general/public importance which require the
consideration of this Hon'ble Court:
2.1. Whether Section 20 of the Rights of Persons with Disabilities Act
2016 envisages an automatic entitlement to pay disregarding the
type of work carried on in any establishment?
2.2. Whether Clause 11 of the circular dated 23/01/2020 did not strike
to balance the competing interests of the employer and employee
while ensuring compliance of the Rights of Persons with
Disabilities Act 2016 inasmuch as Clause 11 is intra vires Section
20 having been framed by the employer within the fore-comers
ofliberty sanctioned therein?
2.3. Whether by granting liberty to the petitioner to ascertain whether
or not the drivers were gainfully employed elsewhere, the
Hon'ble High Court has shifted the burden of proof from the
employee to the employer?
2.4. Whether Section 20 can be interpreted to bestow right to
wages/salary automatically even when the courts have always
evaluated each case on its own facts before awarding or refusing
to award backwages?
 78 ,•

2.5. Whether the impugned order has been passed disregarding the
nature of work, capacity, including financial capacity of the
Petitioner that has suffered a severe setback on account of the
outbreak pandemic leaving the Petitioner unable to bear the
financial burden of payment of entire backwages to the
respondents?
2.6. Whether it is correct to say that clause 11 of the impugned
circular leaves it to the employer to decide on alternative
employment at its own sweet will and at its own leisure without
appreciating that accommodating drivers in a Corporation that
provides public transport to an alternative equivalent post takes
time especially in the present unusual circumstances that brought
work to a standstill for months?
3. DECLARATION IN TERMS OF RULE 3(2) The Petitioners
states that no other Petition seeking leave to appeal has been filed
by the Petitioner against the impugn common final judgment dated
16/07/2020 passed by the Hon'ble High Court of Judicature at
Bombay in a batch of 14 writ petitions whereby clause 11 of the
Circular dated 23/01/2020 issued by the petitioner has been
quashed.
4. DECLARATION IN TERMS OF RULE (5)
The Annexures P-1 to P-19 produced along with the Special Leave
Petition are true copies of the pleadings/ documents which formed
part of the records of the case in the Court below against whose
order the leave to appeal is sought for in this Petition.

5. GROUNDS
Leave to appeal is being sought for on the following grounds:
 79

5.1. Because Section 20 of the Rights of Persons with

Disabilities Act 2016 did not envisaged an automatic
entitlement to pay disregarding the type of work carried
on in any establishment. The language of Section 20
acknowledges that a straight jacket formula cannot be
applied to all establishments. The petitioner in the
present case is a state road transport corporation and has
faced a severe setback upon outbreak of the pandemic.
Clause 11 of the circular dated 23/01/2020 was an
attempt to balance the competing interests of the
employer and employee while ensuring compliance of
the Rights of Persons with Disabilities Act 2016.
However the interpretation of Section 20 by the High
Court to hold Clause 11 ultra vires intends to measure
all establishments with same scale disregarding the
nature and capacity of the establishment. It is therefore
most respectfully submitted that the impugned order
warrants indulgence of this Hon'ble Court.
5.2. Because by granting liberty to the petitioner to ascertain
whether or not the drivers were gainfully employed
elsewhere, the Hon'ble High Court has shifted the
burden of proof from the employee to the employer. It
is settled position that burden of proof, having regards to
the principles analogous to Section 106 of the Evidence
Act, that employee was not gainfully employed, is on
the employee. It is most respectfully submitted that even
while liberally interpreting the provisions of the Rights
of Persons with Disabilities Act 2016, the High Court
could not have shifted the burden of proof on the
 80

Petitioner. The burden must remain on the drivers to

show that they have not been gainfully employed
elsewhere during the entire period. Hence the petitioner
is seeking indulgence of this Hon 'ble Court in the
matter.
5.3. Because clause 11 of the circular dated 23/01/2018 is
intra vires Section 20 of the Rights of Persons with
Disabilities Act 2016. Clause 11 stipulated that after an
employee is diagnosed with a disability the matter
would be examined and until such examination is
complete and a final decision is taken about the fitness
of_ employee or his alternate employment, the
intervening period would be treated as leave without pay
and the earned leave on the earlier job would be carried
forward to the new job. Thus in terms of Section 20 it
laid down the policy for posting and transfer of
employee. It is erroneous to interpret Section 20 as one
that bestows right to wages/salary automatically because
had it been so, the courts would not have evaluated each
case on its own facts before awarding or refusing to
award backwages.
5.4. Because the impugned order has been passed
disregarding the nature of work, capacity, including
financial capacity of the Petitioner that has suffered a
severe setback on account of the outbreak pandemic
leaving the Petitioner unable to bear the financial burden
of payment of entire backwages to the respondents. The
impugned order leaves no scope for symbiotic existence
of establishment and employee. While the interest of the
 81

employees has to be protected in accordance with the

provisions of the Rights of Persons with Disabilities Act
2016, a balance has to be struck to enable the
establishment to sustain themselves especially in present
times.
5.5. Because clause 11 of the impugned circular does not
leaves it to the employer to decide on alternative
employment at its own sweet way and at its own leisure.
However it is also true accommodating drivers in a
Corporation that provides public transport to an
alternative equivalent post takes time especially in the
present unusual circumstances that brought work to a
standstill for months. Even assuming otherwise, the
High Court instead of quashing the clause 11 could have
modified it to include a time frame.
5.6. Because the issue was decided against the petitioner in
the absence of his defence on the issue. The employees
were granted liberty to amend the writ petitions whereby
a completely new case was set up. The challenge to
earlier circular was given up and an entirely new case
challenging clause 11 of the new circular was pleaded
post 31/01/2020. The judgment in the matter was
reserved on 18/03/2020 without giving adequate time to
the Petitioner to file a reply to the new plea set up by the
employees.

6. GROUNDS FOR INTERIM RELIEF:

6.1. Because the petitioner is facing grave financial crisis and
does not have the capacity to bear the financial burden that
 82

has been saddled upon quashing of Clause 11 of circular

dated 23/01/2020.
6.2. Because the Petitioner will suffer an irreparable loss if
the impugned judgments of the Hon'ble High Court are not
stayed during the pendency of the Special Leave Petition
before this Hon'ble Court.

6.3. Because the Petitioner has good prima facie case in their
favour and hope for succeeding before this Hon'ble Court
I

and is covered by several decisions of this Hon'ble Court in

its favour. The grounds pleaded in para 5 above are not
being repeated for the sake of brevity and may kindly be
read as part and parcel of the para 6 of the SLP.

7. MAIN PRAYER:

In these circumstances, it is respectfully prayed that this Hon'ble

Court may be pleased to -
(a) Grant Special Leave to Appeal to the Petitioner against the
.} impugned common final judgment dated 16/07/2020 passed
by the Hon'ble High Court of Judicature at Bombay in W.P.
No. 9762/2019, W.P. No. 9763/2019, W.P. No. 9764/2019,
W.P. No. 9765/2019, W.P. No. 9767/2019, W.P.
No.10192/2019; W.P. (L) No. 23126/2019, W.P. (L) No.
23128/2019, W.P. (L) No. 23131/2019, W.P. (L) No.
23132/2019, W.P. (L) No. 23225/2019, W.P. (L) No.
26405/2019 and W.P. (L) No. 30670/2019 and 703 OF 2020;
(b) Pass any such other order/s as may be deemed fit and proper
in the facts and circumstances of the case.
 83

8. PRAYER FOR INTERIM RELIEF:

In these circumstances, it is respectfully prayed that this Hon'ble

Court may be pleased to -

a) pass an ex parte ad interim order staying the operation of the

impugned common final judgment dated 16/07/2020 passed by
the Hon'ble High Court of Judicature at Bombay in W.P. No.
9762/2019, W.P. No. 9763/2019, W.P. No. 9764/2019, W.P. No.
9765/2019, W.P. No. 9767/2019, W.P. No.10192/2019; W.P. (L)
No. 23126/2019, W.P. (L) No. 23128/2019, W.P. (L) No.
23131/2019, W.P. (L) No. 23132/2019, W.P. (L) No.
23225/2019, W.P. (L) No. 26405/2019 W.P. (L) No. 30670/2019
and 703 OF 2020;
b) pass such further order or orders as this Hon'ble Court may
deem fit and proper in the facts and circumstances of the case.

AND FOR THIS ACT OF KINDNESS THE PETITIONERS AS

IN DUTY BOUND SHALL EVER PRAY.

FILED BY

\\(c/
(MAYURI RAGHUVANSHI)
(ADVOCATE FOR THE PETITIONER)
DRAWN ON: 18.09.2020
FILED ON: 09.10.2020
 84

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL). NO. OF 2020

IN THE MATTER OF:

THE STATE OF PETITIONERS

MAHARASHTRA ROAD
AND TRANSPORT
CORPORATION AND
OTHERS

VERSUS

VIKAS S/O KHANDERAO RESPONDENTS

KENG AND ANOTHER
CERTIFICATE

Certified that the Special Leave Petition is confined only to the

pleadings before the court whose order is challenged and the other
documents relied upon in those proceedings. No additional facts,
documents or grounds have been taken therein or relied upon in the
Special Leave Petition. It is further certified that the copies of the
documents / annexures attached to the Special Leave Petition are
necessary to answer the questions of law raised in the petition or to
make out grounds urged in the Special Leave Petition for consideration
of this Hon'ble Court. This certificate is given on the basis of the
instructions given by the Petitioner/ person authorised by the Petitioner
whose affidavit is filed in support of the SLP.

FILED BY

(MAYURI RAGHUVANSHI)
ADVOCATES FOR THE PETITIONER
DRAWN ON: 18.09.2020
FILED ON: 09.10.2020
 L

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION
SPECIAL LEA VE PETITION (CIVIL). NO. OF 2020

THE MATTER OF:

, THE STATE OF PETITIONERS

l\1AHARASHTRA ROAD AND
TRANSPORT CORPORATION
AND OTHERS
VERSUS
VIKAS S/O KHANDERAO KENG RESPONDENTS
AND ANOTHER

AFFIDAVIT

l. Shri. Nitin,s/o Nimba Maind, aged about 45 years, working as Divisiona l

C'o11trol lt.:r. in the Maharashtra State Road Transport Corporation having
office at NASHIK do her by solemnly affirm and state as under: -

I . That 1 am well conversant with the facts and circumstances of

the case based on the information derived from records
maintained by the Petitioner and I am authorized by the
petitioners to swear the present affidavit and therefore I am
competent to swear to this affidavit on behalf of the petitioners.

2. That l have read the accompanying list of dates, special leave

petition and interlocutory applications and have understood the
same and the same have been drawn by my advocate under my
instructions.
e ·t ,'v.t l e ·-t
3. Thm the w,a,itv petition including grounds 1s
consisting paragraphs I to 8, pages @ to t}! ; pages
£ to f-f is comprising of list of dates; pages 5-S-
to ( 2-- is comprising of the special leave petition with
affidavit, irripugned judgment, annexures, and interlocutory
applications.
/_ -2-
/1'
 -2-

4. That the facts stated in the special leave petition, list of dates,
and interlocutory applications are true to my knowledge and
belief.

5. That the annexures annexed to the list of dates are true copies of
their respective originals.

VER IFICATION:

VERJFIED that the statements made above are true to my knowledge

and belief. No part of it is false and nothing material has been

/),Iv concealed therefrom.

I OPASANI VERJFIED at fruutcu-<-\"" on the .2:.l- day of Sc.t> ,2 020.

« N•tary

JDENTIFIEO BY
{Jhlfl' (Y)oA c/
1
 A n n exu re-P/ 1
No. ST/Labour /Esta/486-E/3621
Maharashtra State Road Transport Corporation
Central Office, Maharashtra Transport Bhavan,
Dr. Anandrao Nair Road,
Mumbai-400 008

Date: 29.07.2016

• The General Manager (Appeal), S.T. Regional Office, Pune.

• Deputy General Manager (Training), S.T. Central Training

Institute, Bhosri, Pune.

• Regional Manager, S.T. Regional Office, Mumbai/Pune/

Aurangabad/ Nagpur.

• Divisional Controller, S.T. Corporation

• Mumbai/Palghar/Raigad/Ratnagiri/Singhudurg/Thane/

Nasik/ Jalgaon/Dhule/Ahmednagar

/Pune/Kolhapur/Sangli

/Satara/Solapur/Aurangabad/Jalna/Latur/Nanded/Osma

nabad/

Parbhani/Nagpur/Bhandara/ Chandrapur /Wardha/ Amrava

ti/ Akola/Buldana/Yevatmal/Gadchiroli.

Sub : Action to be adopted if the Driver 1s found to be

medically disqualified for colour blindness while in the

service of State Transport.

Ref: 1) ST/Emp/Esta/486-E/3346 dated 21.07.2012.

 gs
2) ST/Emp/Esta/486-E/3878 dated 24.08.2012.

3) ST/Emp/Esta/486-E/2075 dated 18.04.2015.

According to the Circular, instructions were given to take

action if the Driver is found to be medically disqualified due to

colour blindness while in the service of State Transport. Such

matters were considered and discussed in the meeting of the

Corporation held on 01.04.2016 in connection with the

situation that has arisen in the Corporation. The issues

arising out of the Resolution No.2012:06: 18 dated 20.06.2012

were also discussed in the meeting. The Board of Directors

has passed the Corporation Resolution No. 2016:04:16 dated

01.04.2016 after considering the pros & cons. The following

instructions are being given regarding the action to be taken

accordingly.

1] As per the above Corporation Resolution No.2016:04:16

dated 01.04.2016, the previous Corporation Resolution No.

2012:06:18 dated 20.06.2012 stands cancelled. Accordingly

the Circular Nos. 1 an, 2 are also stand cancelled. Therefore,

drivers who are no longer medically qualified for colour

blindness in the visual acuity test should not be offered an

alternative job.
2) As per the relevant Circular No. 1 up to the period till

18.04.2015, the Drivers who have been medically disqualified

due to colour blindness, have offered alternative job as

Security Guards or the cases of alternative appointments are

pending, colour blindness can occur if such employees have

the following defects. In view of this fact, the following medical

examination of those employees should be done through

Anololoscopy device at Sir J.J. Group Hospital, Mumbai if it is

not available at the District Civil Surgeon, Local Medical

Board.

a] If the Occipital lobe of the brain fails due to an accident.

b] If the retina of the eye is damaged by ultra-violet rays.

c] Macular degeneration of the retina will occur due to

advanced age.

d] Permanent inflammation of the macular area of the Retina

due to diabetes.

If at the end of the above medical examination it is found that

the employees are no colour blind and if the said employee is

eligible to work as a Driver, such employees are to be re

appointed as Drivers under the rules by conducting proper

medical examination and g1v1ng them proper training
1 as

Driver. Appropriate disciplinary action should be taken

against the drivers who are eligible for medical examination

after being given jobs as Drivers and the Drivers who are

found to be colour blind should be given alternative jobs in the

"Clear" position.

3] As per the procedure indicated in Serial No. 2 above, in

the case pending till the date of circulation of this Circular,

such Drivers who are medically ineligible due to colour

blindness but have not been given an alternative job should be

medically examined and disciplinary action should be taken

as decided in Serial No. 2 above.

4] Henceforth no alternate job be offered to the employees

who are found to be medically ineligible due to colour

blindness. Their services should be terminated on the grounds

of medical disqualification.

Signature

Vice President & Managing Director

Cc for information and necessary action :-

Chief Security & Vigilance Officer/ Financial Adviser & Chief

Accounts Officer/ General Manager (S & P) / General Manager

 q/
(Traffic) /General Manager (M.E.)/ Deputy General Manager

(Information & Technology)/ General Manager (Planning &

Marketing)/ Deputy General Manager (Construction)/Chief

Law Officer /Chief Labour Officer /Secretary, M.S.R.T.C.

Corporation/Public Relations Officer/ Chief Statistical

Officer /Chief Internal Auditor /Chief Labour Officer /Personal

Assistant of Chairman/Personal Assistant of Vice President

and Managing Director/ Assistant Labour Officer (General

Administration/(Administration)/ (State cadre) (Backward

Class)/ Human Resource planning/co-ordination)/Component

cadre/Head Office.

Signature

General Manager (P & IR)

/ /True English Translation/

 1

ANNEXURE- .p I 2-

IN THE IDGH COURT OF JUDICATURE OF BOMBAY

CIVIL APPELLATE JURISDICTION

CIVIL WRI'r PETITION N0.'11'63 OF 2019

DISTRICT : NASHIK

In fr..e matter of Article 226 &

227 of the Constitution of
India.
AND
In the matter' of Article 14, 15
& 21 of the Constitution of
India.
AND
In the matter of Section 20 of
the Rights of Persons with
Disabilities Act, 2016.

AND
In the matter of Circular dated
29.07.2016 issued by the
respondent No.2.

I AND
In the matter of letter dated
I
09.08.2018 . dated issued by
the respondent No.3 to the
I
petitioner.
I AN
 2

In the matter of Circular dated

27.09.2017 issued by the
respondent No.2.

Samadhan S/ o Babaji Pawar,

Age: 43 years, Occu.: Nil,
R/o. Varane, Post- Sonaj,
Tq. Male gaon, Dist. Nashik. ...PETITIONER
VERSUS

1. The State of
Maharashtra,
Through it's the Principle Secretary
Maharashtra State Transport
Department, Mantralaya,
Mumbai-32.

2. The State of Maharashtra,

Road and Transport
Corporation Maharashtra
Wahatuk Bhavan, Dr. Anandrao
Nair Marg, Mumbai-44008.
' •·' :

3. - The Divisional Controller

, . St a te Transport Corporation,
ashik, Tq. & Dist. Nashik.

4. 'the Depot Manager,

· State Transport Corporation,
<¥, M m ad, Tq. Man.mad,
::,Dist. Nashik.....................................RESPONDENTS
·• :.;';i
• l

'I

(Copy to be served Respondent No.1

·µ p a n the G.P. Office High Court of
J u dica tur e of Bombay)
J
1• I.,.
.,

To, · .
·. THE HON'BLE CHIEF JUSTICE
, A
c •t ND OTHER HON'BLEPUISNE
·t ·; DGES OF THE HIGH COURT OF
•. ·.iJU])ICATURE AT BOMBAY.
· tf1.::
. j: THE HUMBLE WRIT PETITlON OF
: ,,:;;:=: THE ABOVE NAMED PETITIONER
 3

MOST RESPECTFULLY SHOWETHS AS UNDER:-

01. This writ petition is presented and filed

against the Circular dated 29.07.2016 issued by the

respondent No.1, whereby the colour blindness

persons have been declared to disqualify for an

alternative service in the department.

02. That, petitioner submits that, the petitioner

is law abiding citizen of India and residing above

mentioned address. The petitioner was appointed on

18.05.2011 as a driver with the respondent No.2 to 4

from the category of Other Backward Category at

Nashik Depot. The petitioner has done his

unblemished service and without any stigma for 08

years with the respondent No.2 to 4. The true and

correct copy of appointment letter 30.05.2011 issued

by Divisional Controller, Nashik of the State of

Maharashtra Transport Corporation is annexed

herewith and marked as EXHIBIT "A".

03. That, the petitioner submits that, the

respondent No.3 had issued a 'letter dated

21.12.2017 for routine check-up i.e. yearly cheak-up

and whereby directed to the petitioner - to check his

 4

eyes in Bapaye Hospital. The true and correct copy of

the letter issued by the respondent No.5 on

21.12.2017 to the petitioner is annexed herewith and

marked as EXHIBIT "B".

04. That, the petitioner submits that,

..
thereafter, the petitioner approached to the Bapaye

Hospit andexamined his eyes. The Bapaye Hospital

has issued a report and informed that, the petitioner

is sU:ffering from colour vision from partial colour

vision defect. The true and correct copy of the report

dated 29.01.2018 issued by the Bapaye Hospital is

anne:X d herewith and marked as EXHIBIT "C".

05. ·, That, the petitioner submits that, after

recei g theabove said report the respondent No.4

is su ed: a letter to the petitioner and informed that

the petitioner is suffering from the partial colour

defect,

as such the service of the petitioner is stopped till the

, .,i
' I

further; order . The true and correct copy of the letter

dated ,18.05.2018 issued by the respondent No.5 to

I

the petitioner is annexed herewith and marked as

,

EXHIBIT "D".
 5
•'.i.i·
 6

06. That, the petitioner submits that, thereafter

the petitioner, the respondent No.4 issued a letter to

the Superintendent Government J.J. Hospital and

informed that, the petitioner is working with the

respondent No.2 to 5 as a driver in Depot State

Transport, Manmad and asked to give a report as to

whether the petitioner is fit to do the work as a driver

with the respondent No.2 to 4. The true and correct

copy of the letter dated 17.05.20i8 issued by

respondent No.3 to J.J. Hospital is annexed herewith

and marked as EXHIBIT "E".

07. The petitioner submits that, after above

said communication, the petitioner approached to the

J.J. Hospital for examination of the eyes, thereafter,

the J .J. Hospital examined to the petitioner and

issued report whereby informed to the respondent

No.2 to 4 that, the petitioner 1s suffering color

blindness i.e. 13.06.2018 and is unable to perform

the duty as a driver. The true and correct copy of the

reports issued by J.J. Hospital along with the test

conducted by hospital are annexecl herewith and

marked as EXHIBIT "F"•

'·
 6

08. The petitioner submits that, after receiving

the said reports, the respondent No.3 had issued

letter dated 09.08.2018 to the petitioner and thereby

informed that the service of the petitioner is came to

be terminated from the date of letter as the petitioner

is unfit for performing his duty with the respondent

No.2 to 4 as a driver as the petitioner is suffering

from color blindness. The true and correct copy of the

letter dated 09.08.2018 issued by the respondent

No.3 to the petitioner is annexed herewith and

marked as EXHIBIT "G".

. . .
09. The petitioner submits that, thereafter, the
,J'

petitioner filed an application dated 23.08.2018 to

the respondent No.3 for an alternative service,

wh reirt contended that, the petitioner is serving as a

driver:; · with the respondent No.2 to 4 since

18.05:2010 and he has done his service unblemished

anq thout anystigma. It is further contended that,

the family of the petitioner is depend upon him for

liv liJ.1ood. It is further contended that, the petitioner

is ndf having any income source and no karta person

1n hl.s, family, as such all the responsibility of his

! ! .
 7

family upon him, as such the petitioner be provided

an alternate service with the respondent No.2 to 4.

The true and correct copy of the application dated

23.08.2018 made by the petitioner to the respondent

No.3 is annexed herewith and marked as EXHIBIT

10. The petitioner submits that, after

submitting the above said application, the

respondent No.3 issued a letter to the petitioner and

informed that the service of the petitioner is

terminated by virtue of the circular dated 29.07.2016

as the petitioner is unfit for performin hisduty as a

driver due to the colour blindness. It is further

informed that, the application made by the petitioner

for alternate service is received to respondent No.3,

however the petitioner is not entitled to get a an

alternate service by virtue of th e . circular

dated

29.07.2016 as the circular said that who has

occurred the disability in respect of the colour

blindness are not entitled for alternate service. The

otfORf Mf
true and correct copy of the letter dated 06.09.2018
.
'·,• '
8
 9

issued by the respondent No.3 to the petitioner 1s

annexed herewith and marked as EXHIBIT "I".

11. The petitioner submits that, the respondent

No.3 has relied on the circular issued by the

respondent No.2 and thereby declared that the

petitioner is not entitled to get an alternate service

with he respondent No.2 to 4. The petitioner submits

that, the said circular says that the colour

blindness

person is not qualified for an alternative service in

the department. In fact said circular is ultra virus to

the provisions of Section 20 of the Rights of Persons
......... ,...
with · ,Disability Act, 2016 (hereinafter referred as to

"the said Act") as the petitioner has done the service

with ..the respondent since 08 years, when petitioner

was appointed as a driver with the respondent No.2

. •'

to 4 . at' that time the petitioner was qualified for the

said· po t. Hence, the disability which is occurred to

the petitioner is performing the duty, as such the

petitioner is an entitled to get the alternate service by

....t.
virtu¢: 'bf the section 20 of the said Act. The said

sediajisays that-

'. .
'•
 1

/l)O
20. Non-discrimination in employment- (1) No

Government establishment shall discriminate

against any person with disability in any matter

relating to employment

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, exempt any

establishment from the provisions of this

section.

(2) Every Government establishment shall

provide reasonable accommodation and

appropriate barrier free and conducive

environment to employees with disability.

(3) No promotion shall be denied to a person

merely on the ground of disability.

(4) No Government establishment shall

dispense with or reduce in rank, an employee

who acquires a disability during his or her

BEFORE ME
service.
 IoI
Provided that, if an employee after

acquiring disa ility is not suitable for the posts

he was holding, shall 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

I

kept on a supernumerary post until a suitable

post is available or he attains the age of

superannuation, whichever is earlier.

...(SL The appropriate Government may frame

pPlides for posting and transfer of employees

with disabilities.

12. The petitioner submits that, the circular

dated,; 29.07.2016 issued by the respondent No.3 is

an ar;bitrary, illegal and ultra virus to the section 20

+
of t.he.' ·' said Act as the petitioner has been occurred

disal?. ty in performing his duty with the respondent

No.Q\ J C? 4, the respondent No.2 has not appreciated

th tf /the petitioner is suffering from the colour

..
blirigpess after rendering the serving of 08 years with
..
re rt:@adent No. 2 to 4, as such the petitioner is not
 11

Jr>2-
responsible for the said disease, hence the circular

issued by the respondent No.2 is ultra virus to the

section 20 of the said Act. The true and correct copy

of the circular dated 29.07.2016 issued by the

respondent No.2 is annexed herewith and marked as

EXHIBIT "J".

13. That, the petitioner submits that, it would

not be out of place to mention here that the

respondent No.2 has issued a circular on 29.09.2017

in which the respondent No.2 has taken the decision

in respect of providing an alternative service to

employees who is suffering from disability to vision

while performing his duty. The true and correct the

copy of circular dated 29.09.2017 is annexed

herewith and marked as EXHIBIT "K".

14. That, the petitioner submits that, though

the above representation was made to the respondent

No.3 for alternate service but in vain, therefore the

petitioner again made an application on 28.06.2019

and requested to the respondent No.2 to provide an

alternate service in the department. The true and

 1

correct copy of the application dated 28.06.2019 1s

annexed herewith and marked as EXHIBIT "L".

15. The petitioner submits that, the Article 14

15 and 21 of the Constitution of India guarantees the

I

right of life as well· as equality of law. The said

.I

circular is an excessive and arbitrary as well as ultra

virus to the section 20 of the said Act as the

petitioner is not responsible for suffering colour

blindness, as such it is needs to be declared the

.
circu lar dated 29.07.2016 is an unconstitutional and
against to the Article 14, 15 and 21 of the

Con• .,s.·· ti:_t.I:u. tion of India.

16. , That, the petitioner submits that, the

respondents have terminated the service of the

petipc;mer without considering the provisions of the

Righ of Persons with Disability Act, 2016, as such,

the., termination of the petitioner is deserves to be

.

qti shed and set aside.

i
17. That, the petitioner submits that, the

circql dated 29.07.2016 is needs to be quashed

an.d· -· set aside after holding the circular 1s

{,},

un b,l"istitutional and against the fundamental rights

 1

guarantees under Article 14 15 and 21 of the

Constitution of India as the respondent No.2 to 4

have been protected to other employees up to

18.04.2015, as such the respondent No.2 to 4 have

done discrimination with the petitioner. Pursuant to

the circular dated 29.07.2016 the respondent No.2 to

4 have been stopped the salary of the petitioner and

refused to provide an alternative service to the

petitioner. As such, the operation of the impugned

circular dated 29.07.2016 kindly be stayed during

the pendency and final disposal of the present writ

petition as the petitioner has strong prima fade case

is made out for quashing and setting aside the above

said circular.

18. That, the petitioner has not filed any other

petition before this Hon'ble High Court and before the

Apex Court touching to the subject matter of the

present writ petition and this writ petition is coming

for the first time in respect of this subject matter of

this writ petition.

.,
 1

19. That, the petitioner undertakes to supply

English translation of Marathi documents, if

necessary.

20. That, the petitioner has not received caveat

notice from the respondents so far.

21. That, the petitioner craves leave to add

amend, alter, delete or modified any of the
contentions or any of the grounds raised 1n
paragraphs of this writ petition, if necessary.
22. THE PETITIONER THEREFORE PRAYS THAT:
A] This Writ Petition may kindly be allowed.

BJ Rule may kindly be made absolute by

allowing this Writ Petition, thereby

declaration that, the circular dated

29.07.2016 issued by the respondent No.2

is unconstitutional and against to the

Article 14, 15 and 21 of the Constitution of

India.

C] Rule may kindly be made absolute by

allowing this Writ petition, thereby

declaration that, the circular dated

29.07.2016 issued by the respondent No.2

, .
is an ultra virus to the section 20 of the
 1

/06
Rights of Perso;ns with Disabilities Act,

2016.

D] Rule may kindly be made absolute by

allowing this Writ Petition, the letter dated

09.08.2018 issued by the respondent No.3

to the petitioner may kindly be quashed

and set-aside.

EJ Rule may kindly be made absolute by

allowing this Writ Petitj.on, thereby

direGtions to the respondents to provide

the

alternative service to the petitioner by

virtue of the section 20 of the Rights of

Persons with Disabilities Act, 2016.

FJ Rule may kindly be made absolute by

allowing this Writ Petition, thereby direction

to the respondents to pay the- ba ck -

wages

to the petitioner as the decision taken by

the respondent No.2 to 4 is illegal and

contrary to the provisions of the law.

GJ Pending the hearing and final disposal of

the present Writ Petition the letter dated

 1
09.08.2018 issued by the respondent No.3

to the petitioner may kindly be stayed.

 1

H] Pending the hearing and final disposal of

the present Writ Petition, the respondents

may kindly be directed to provide

alternative service to the petitioner.

I] Pending the hearing and final disposal of

the present Writ Petition, the execution,

implementation and operation of the circular

dated 29.07.2016 issued by the respondent

No.2 may kindly be stayed.

J] Pending the hearing and final disposal of

the present Writ Petition, respondent No. 2

, , .....; !.··t o 4 kindly be directed to provide an

alternative service to the petitioner

forthwith.

K] Ad-interim relief in terms of prayer clause

"G" ,"H" ,"I" & "J" may kindly be granted.

L] Any other suitable and equitable relief

deems fit in the interest of justice may
•kindly be granted in favour of the
•
I
: petitioner.

AND F OR THIS ACT OF KINDNESS AND JUSTICE THE

PETITIONER AS ON DUTY BOUND SHALL EVER RAY.

Date :..· :· /08/2018 ( K. . SHERMALE )

Place .-' Bombay. Advocate for Petitioner
I
.l .
 1

VERIFICATION
I, Samadhan S/o Babaji Pawar, Age: 43

years, Occu.: Nil, R/o. Varane, Post- Sonai Tq.

Malegaon, Dist. Nashik, do hereby state on solemn

affirmation that the contents of this Writ Petition

from Para No. 01 to 22 and prayer Clause (A) to (L)

. read over and explained to me in Marathi and the

.DO ·
A :A , .. 0 ,..,.,e are true and correct to the best of my
,01sr 1
g,No, 3,;
t.. tt
51i- ledge.
rl4.
)>
7 i-Ience verified at Aurangabad on this JO
r =
:0
)>
day of July, 2017.
,,.-

•"·
t'i( Identified and Deponent

r
xplain ed by :
,I..r.;.- .\f >
' -
'
• • . .,\ '"!.
I :..
· ,.
.
z.
,. · ./.. . (Samadhan S/ o Babaji Pawar)
\ t
'-. _/'';:J
t
j. p : / ( K.N. SHERMALJ )
... ·r

Advocate, High Court

AFFIDAVIT
Solemn · e (btJ.h j f Y'

: · =:: ::- ...:.;;;.;; -;:1rff':1 ·

:_..:._.-:.
'".fhom HM She is oersonallv Know
 1

lb
ANNEXURE· f /3

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

CIVIL APPELLATE JURISDICTION

CIVIL WRIT PETITION NOq. -:,..., .t,OF 2019

DISTRICT : NASHIK

In the matter of Article 226 &

227 of the · Constitution of
India.
AND
In the matter of Article 14, 15
& 21 of the Constitution of
India.
AND
In the matter of Section 20 of
the Rights of Persons with
Disabilities Act, 2016.

AND
In the matter of Circular dated
29.07.2016 issued by the
respondent No.2.

AND
In the matter of letter dated
06.06.2018 ·d a te d issued by
the respondent No.3 to the
petitioner.· ·
AND
 2

In the matter of Circular dated

27.09.2017 issued by the
respondent No.2.

Sanjay s/o Ragho Dukale,

Age: 5, 2 years, Occu.: Nil,
R/o. Ghodegaon Chondi-Jalgaon,
Tq. Malegaon, Dist. Nashik....................PETITIONER
.'
:.1 VERSUS

1. The State of Maharashtra,

Through it's the Principle Secreta.ry
Maharashtra State Transport
Department, Mantralaya,
Mumbai-32.

2. The State of Maharashtra,

Road and Transport Corporation
Maharashtra Wahatuk Bhavan,
Dr. Anandrao Nair Marg,
Mumbai-44008.

3. ·: The Divisional Controller

State Transport Corporation,
. Nashik, Tq. & D1.st. Nashik.

4. · .The Depot Manager,

State Transport Corporation,
Manmad, Tq. Manmad,
·· -Dist. Nashik.................................RESPONDENTS

:. (Copy to be served Respondent No.1

. . upon the G.P. Office High Court of
· Judicature·of Bombay)
1

To,··
..::THE HON'BLE CHIEF JUSTICE
. jAND OTHER HON'BLE PUISNE
JUDGES OF THE HIGH COURT OF
· '.JUDICATURE AT BOMBAY.

THE HUMBLE WRIT PETITION OF

THE ABOVE NAMED PETITIONER
 3

MOST RESPECTFULLY SHOWETHS AS UNDER:-

01. This writ petition is presented and filed

against the Circular dated 29.07.2016 issued by the

respondent No. l, whereby the colour blindness

persons have been declared to disqualify for an

alternative service in the department.

02. That, petitioner submits that, the petitioner

• "l• • r-•

is law abiding citizen of India and r siding above

mentiorwd address. The petitioner was appointed on -

01 ·1-1. I 999 as a driver with the respondent No.2 to 4

at i, ;\ !;h ik Division. The petitioner has rendered his

,.. .

unblemished service and without any stigma for 20

years with the respondent No.2 to 4. The true and

correct copy of appointment letter 09.06.2000 issued

by Nashik Division, Nashik is annexed herewith and

marked as EXHIBIT "A".

03. That, the petitioner submits that, the

respondent No.3 had issued a letter dated

21.12.2017 to the Bapaye Hospital for routine check-

11p i.e. yearly check-up and whereby directed to the

I petitioner to check his; eyes in Bapaye Hospital. The

 4

true and correct copy of the letter issued by the

respondent No.5 on 21.12.17 to the Bapaye Hospital

is annexed herewith and marked as EXHIBIT "B".

04. That, the petitioner submits that,

thereafter, the petitioner approached to the Bapaye

Hospital and examined his eyes. The Bapaye Hospital

.,1,
has issued a report and informed that, the petitioner
.
is suffering from partial colour defect. The true and

correct copy of the report issued by the Bapaye

Hospital is annexed herewith and marked as

EXHIBIT "C".
. ·! , ;: , :

05. ! • That, the petitioner submits that, after

receiving the above said report the respondent No.3

issued:a letter to the petitioner and informed that the

petitioner is suffering from partial colour defect, as

such . the service of the petitioner is stopped till

the

furt.he,r order. The true and correct copy of the letter

If ) ,j'

da te d= .1 8 .0 5 .20 18 issued by the respondent No.3 to

.. .
petitioner is annexed herewith and marked as
: ! ·,

06. That, the petitioner submits that, thereafter

 4
the petitioner, the respondent .4 issued a letter to
 5

the Superintendent Government J .J. Hospital 1n

which contended that the petitioner is a working with

the respondent No.4 as a driver in Depot State

Transport, Man.mad and the Bapaye Hospital has

been given report that the petitioner i·s uffering from

the colour vision defect, therefore the test of the

petitioner in respect of colour blindnes:·s 'i-s tested

from the anomoloscope machine by virtue· of

instruction

given by the State Transport Office, Bombay, as such

''"'•,.....

the '
said test be conducted and give a report as to

whether the petitioner is capable to do the work as a

driver with the respondent No.2 to 4. The true and

correct copy of the letter dated 17.05.2018 issued by

respondent No.3 to J.J. Hospital is annexed herewith

and marked as EXHIBIT "E".

07. The petitioner submits that, after above

said communication, the petitioner approached to the

J .J. Hospital for examination of the eyes, thereafter,

the J .J. Hospital examined to the petitioner and

I issued report whereby informed to the respondent

fl· ru
I S o.2 t 4that, the petitioner i . ,s;uffering color
blindness i.e. protonopia and is una'J?1e to perform the
5
I

I.
 6

duty as a driver. The true and correct copy of the

reports issued by J .J. Hospital along with the test

conducted by hospital are annexed herewith and

marked as EXHIBIT "F".

08. The petitioner submits that, after receiving

the said reports, the respondent No.3 had issued

letter dated 09.08.2018 to the petitioner and thereby

informed that the service of the petitioner is came to

be terminated from the date of letter as the petitioner

is unfit for performing his duty with the respondent

No.2 to 4 as a driver as the petitioner is suffering

fro111·color blindness. The true and correct copy of the

letter dated ,09.08._20 18 issued by the respondent

1

No.3 to the petitioner is annexed herewith and

marked as EXHIBIT "G".

:· \1

09. . The petitioner submits that, thereafter, the

,,
•. •·

petiu ner filed an application dated 23.08.2018 to

the Jespondent No.3 for an alternative service,

wh rein contended that, the petitioner is serving as a

dtjx r with the respondent No.2 to 4 since
I -1:.

I 0 L
'
d .1999 and he has done his service unblemished

arid . without any stigma. It is further contended that,

 7

the family of the petitioner is depend upon him for

livelihood. It is further contended that, the petitioner

is not having any income source and no karta person

in his family, as such all the responsibility of his

family upon him, as such the petitioner be provided

an alternate service. The true and correct copy of the

application dated 23.08.2018 made by the petitioner

to the respondent No.3 1s annexed herewith and

marked as EXHIBIT "H".

10. The petitioner submits that, after

submitting the above said application, the

respondent No.3 issued a letter to the petitioner and

informed that the service of the petitioner is

terminated by virtue of the circular dated 29.06.2016

as the petitioner is unfit for performing his duty as a

driver due to the colour blindness. It is further

informed that, the applicatio:n made by the petitioner

for alternate service is received to respondent No.3,

however the petitioner is not entitled to get a an

alternate service by virtue of the circular dated

(/_) 4)
S 29.07.2016 as the circular said that who has
·
occurred the disability in respect of the colour
 8

11-b
blindness are not entitled for alternate service. The

true and correct copy of the letter dated 06.09.2018

issued by the respondent No.3 to the petitioner 1s

annexed h ewith and marked as EXHIBIT "I".

11. The petitioner subinits that, the respondent

No.3 has relied on the circular issued by the

respondent No.2 and thereby declared that the

petitioner is not entitled to get an alternate service

with the respondent No.2 to 4. The petitioner submits

that, the said circular says that the colour blindness

person is not qualified for an alternative service in

the d partment. In fact said circular is ultra virus to

the provisions of Section 20 of the Rights of Persons

wi.t,.h. · Disability Act, 2016 (hereinafter •referred as

to

"the s d Act") as the petitioner has done the service

.... .....,.
·

witb 'the respondent since 09 years, when petitioner

was appointed as a driver with the respondent No.2

·•\•

to4 t that time the petitioner was qualified for the

<:! :•;
··· ": ; ' '. ..•··. · , d a
4
said- post. Hence, the disability which is occurred to
11. l'o. : l ,·., . :

the ·petitioner is performing the duty, as such the

0 ..:
S, '((_? petitioner is an entitled to get the alternate service by
/
 8
I
I
 9

virtue of the section 20 of the said Act. The said

section says that-

20. Non-discrimination 1n employment- (1) No

Government establishment shall discriminate

against any person with disability .in any matter

relating to employment

Provided that the appropria;te Government

may, having regard to the typ_e of work carried

on in any establishment, by notification and

subject to such conditions, if any, exempt any

establishment from the provisions of this

section.

(2) Every Government establishment shall

provide reasonable accommodation and

appropriate barrier free and conducive

environment to employ's with disability.

(3) No promotion shall be denied to a person

merely on the ground of disability.

(4) No Government establishment shall

dispense with or reduce in rank, an employee

I who acquires a disability during his or her

I service.
 1

.,
Provided that, if an employee after

acquiring disability is not suitable for the posts

he was holding, shall 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.

(5) The appropriate Government may frame

;-jJ,9l cies for posting and transfer of employees

with disabilities.

12. :::: The petitioner submits that, the circular

dated 29.07.2016 issued by the respondent No.3 is

an- arbitrary, illegal and ultra virus to the section 20

of the. said Act as the petitioner has been occurred

disability in performing his duty with the respondent

No;·2 to 4, the respondent No.2 has not appreciated

II that·/ the petitioner is suffering from the colour

I _S\ blindness after rendering the serving of 09 years with
s fl-' 4-'

II
:;

re pondent No. 2 to 4, as such the petitioner is not

responsible for the said disease, hence the circular

 1

issued by the respondent No.2 is ultra virus to the

section 20 of the said Act. The true and correct copy

of the circular dated 29.07.2016 issued by the

respondent No.2 is annexed herewith and marked as

EXHIBIT "J".

13. That, the petitioner submits that, it would

not be out of place to mention here that the

respondent No.2 has issued a circular on 29.09.2017

in which the respondent No.2 has taken the decision

in respect of providing an alternative service to

employees who is suffering from disability to vision

while performing his duty. The true and correct the

copy of circular dated 29.09.2017 issued by the

respondent No.2 is annexed herewith and marked as

EXHIBIT "K".

14. That, the petitioner submits that, though

the above representation was made to the respondent

No.3 for alternate service but in vain, therefore the

petitioner again made an application on 28.06.2019

and requested to the respondent No.2 to provide an

alternate service in the department. The true and

 1

correct copy of the application dated 28.06.2019 1s

annexed herewith and marked as EXHIBIT "L".

15. The petitioner submits that, the Article 14 15

and 21 of the Constitution of India guarantees the right

of life as well as equality of law. The said circular

is an excessive and arbitrary as well as ultra virus to

the section 20 of the said Act as the

petitioner is not responsible for suffering colour

blindness, as such it is needs to be declared the

circular dated 29.07.2016 is an unconstitutional and

again t to the Article 14, 15 and 21 of the

Coiisutution of India.
'·

16.. That, the petitioner submits that, the

respondents have terminated the service of the

petiti,oner without considering the provisions of the

Rights of Persons with Disability Act, 2016, as such,

. I . l.
. .
the termination of the petitioner is deserves to be

quashed and set aside.

- .!

That, the petitioner submits that, the

circular dated 29.07.2016 is needs to be quashed

artd" set aside after holding the circular 1s

un-constitutional and against the fundamental rights

'
" I
 1

guarantees under Article 14 15 and 21 of the

Constitution of India as the respondent No.2 to 4

have been protected to other employees up to

18.04.2015, as such the respondent No.2 to 4 have

done discrimination with the petitioner. Pursuant to

the circular dated 29.07.2016 the respondent No.2 to

4 have been stopped the salary of th e· petitioner and

refused to provide an alternative s rvice to the

petitioner. As such, the operation of the impugned

circular dated 29.07.2016 kindly be stayed during

the pendency and final disposal of the present writ

petition as the petitioner has strong prima facie case

is made out for quashing and setting aside the above

said circular.

18. That, the petitioner has not filed any other

petition before this Hon'ble High Court and before the

Apex Court touching to the subject matter of the

present writ petition and this writ petition is coming

for the first time in respect of this subject matter of

this writ petition.

I
I
I
 1

19. That, the petitioner undertakes to supply

English translation of Marathi documents, if

necessary.

20. That, the petitioner has not received caveat

notice 'fr om the respondents so far.

21. That, the petitioner craves leave to add

amend, alter, delete or modified any of the

contentions or any of the grounds raised 1n

parag_raphs of this writ petition, if necessary.

22. THE PETITIONER THEREFORE PRAYS THAT:

AJ This Writ Petition may kindly be allowed.
BJ Rule may kindly be made absolute by

allowing this Writ Petition, thereby

declaration that, the circular dated

29.07.2016 issued by the respondent No.2

is unconstitutional and against to the

I , '
I I

:, j
 1
Article 14, 15 and 21 of the
Constitution of

India.

Rule may kindly be made

absolute by
allowing this Writ

petition, thereby

declaration that, the

circular dated

29.07.2016 issued by

the respondent No.2

is an ultra virus to the section 20

of the
 1

Rights of Persons with Disabilities Act,

2016.

D] Rule may kindly be made absolute by

allowing this Writ Petition, the letter dated

09.08.2018 issued by the respondent No.3

to the petitioner may kindly be quashed

and set-aside.

E] Rule may kindly be made absolute by

allowing this Writ Petition, thereby

directions to the respondents to provide the

alternative service to the petitioner by

virtue of the section 20 of the Rights of

Persons with Disabilities Act, 2016.

FJ Rule may kindly be made absolute by

allowing this Writ Petition, thereby direction

to the respondents to pay the back-wages

to the petitiorier as the decision taken by

the respondent No.2 to 4 is illegal and

contrary to the provisions of the law.

G] Pending the hearing and final disposal of

the present Writ Petition the letter dated

09.08.2018 issued by the respondent No.3

to the petitioner may kindly be stayed.
 1

H] Pending the hearing and final disposal of

the present Writ Petition, the respondents

may kindly be directed to provide

alternative service to the petitioner.

I] Pending the hearing and final disposal of

the present Writ Petition, the execution,

implementation and operation of the circular

dated 29.07.2016 issued by the respondent

No.2 may kindly be stayed.

JJ Pending the hearing and final disposal of

the present Writ Petition, respondent No. 2

to 4 kindly be directed to provide an

alternative service to the petitioner

forthwith.

K) Ad-interim relief in terms of prayer clause

"G" ,"H" ,"I" & "J" may kindly be granted.

LJ " Any other suitable and equitable relief

deems fit in the interest of justice may
kindly be granted 1n favour of the
petitioner.

AND FOR THIS ACT OF KINDNESS AND JUSTICE THE

PETITIONER AS ON DUTY BOUND SHALL EVER PRAY.

Date :-
Pl ce :-
/08/2018
Bombay.
K. £
( E)
Advocate for Petitioner
 1

VERIFICATION
I, Sanjay s/ o Ragho Dukale? Age: 52 years,

Occu.: Nil, R/o. Ghodeg on Chondi-Jalgaon, Tq.

Malegaon, Dist. Nashik, do hereby state on solemn

affirmation that the contents of this Writ Petition

from Para No. 01 to 22 and prayer Clause (A) to (L)

are read over and explained to me in Marathi and the

() same are true and correct to the best of my

., .r .1;- 1 -:, rn 2:
.,:: knowledge.
)
z :..,
2 l
P 1
=t,,. ·O
- : •)I.
I

b \ ,-\ ' ·" rl<•

Hence verified at Aurangabad on this .10

dayof August, 2019.

Identified and Deponent

Explained by :

(Sanjay s/ o Ragho Dukale)

/
( K.N. SHERMALE )
Advocate, High Court

AFFIDAVIT

o tz.1.D
y TRUE COP
 1

IN THE WGH COURT OF JUDICATURE OF BOMBAY

CML APPELLATE JURISDICTION

CML WRIT PETITION NO. 97'"' S-oF 2019

DISTRICT : NASHIK

In the matter of Article 226 &

227 of the Constitution of
India.
AND
In the matter of Article 14 1
15 & 21 of the Constitution of
In,dia.
AND
In the matter of Section 20 of
the Rights of Persons with
Disabilities Act, 2016.

AND
In the matter of Circular dated
29.07.2016 issued by the
respondent No.2.

AND
In the matter of letter dated
10.08.2018 dated issued by
the respondent No.3 to the
petitioner.
 2

AND

In the matter of Circular dated

27.09.2017 issued by the
respondent No.2.

Ramchandra S/o Savaliram Chavan,

Age: 42 years, Occu.: Nil,
R/o. Bordaiwat Tq. Kalwan,
DisL Nashik............................................ PETITIONER

VERSUS

1. The State of Maharashtra,

Through it's the Principle Secretary
Maharashtra State Transport
Department, Mantralaya,
Mumbai-32.

2. The State of Maharashtra,

,Road and Transport Corporation
Maharashtra Wahatuk Bhavan,
Dr. Anandrao Nair Marg,
·····-Mu mbai-44008.

3. The Divisional Controller

State Transport Corporation,
\ Na sh ik , Tq. & Dist. Nashik.

4. · '. The Depot Manager,

·:· State Transport Corporation,
· Kalwan, Tq. Kalwan,
;. Dist. Nashik................................RESPONDENTS

(Copy to be served Respondent No. l

-,, upon the G.P. Office High Court of
Judicature of Bombay )

To,
, ·, THE HON'BLE CHIEF JUSTICE
., • ,, AND OTHER HON'BLE PUISNE
- •:: JUDGES OF THE HIGH COURT OF
· · JUDICATURE AT BOMBAY.
I
 3

12,
THE HUMBLE WRIT PETITION OF
THE ABOVE NAMED PETITIONER

MOST RESPECTFULLY SHOWETHS AS UNDER:-

01. This writ petition is presented and filed

against the Circular dated 29.07.2016 issued by the

respondent No. I, whereby the colour blin_dness

persons i.e. the employees have been declared to

disqualify for an alternative service 1n the

department.

02. That, petitioner submits that, the petitioner

is law abiding citizen of India and residing above

mentioned address. The petitioner s appointed on

15.12.2004 as a driver with the respondent No.2 to 4

at Nashik Division Nashik Depot on the basis of

temporary thereafter the petitioner came to be

permanent in the service. The petitioher has rendered

his unblemished service and without any stigma for

15 years with the respondent No.2 to 4. The true and

correct copy of appointment letter 15.12.2004 issued

by Nashik Division, Nashik is annexed herewith and

marked as EXHIBIT "A".

¥
BE ORM£
03. That, the petitioner submits that, the
'•·
., respondent No.3 had issued a letter dated
$1J1C1\. ia
"° o,: ..._/
 4

09.02.2018 to the Karad Hospital for roujne check

up ,Le. yearly cheak:-up and whereby directed to the

petitioner to check his eyes in Karad Hospital. The

true and correct copy of the letter issued by the

respondent No.5 on 09.02.2018 to the Karad Hospital

is annexed herewith and marked as EXHIBIT "B".

04. That, the petitioner submits that,

thereafter, the petitioner approached to the Karad

Hospital and examined his eyes. The Karad Hospital

has issued a report and informed that, the petitioner

is suffering from colour blind cannot be identified

gre. ,.colour at all and further informed that the

.···•: :.,

petitioner is not fit for job of driver. The true and

co:r:r ct copy of the report issued by the Karad

Hos:pital is annexed herewith and marked as

EXHIBIT "C".

0. . That, the petitioner submits that after

\ .
I

re:c I,ving the above said report the respondent No.3

issued a letter dated 18.05.2018 to the respondent

N6:4 and informed that the petitioner is suffering

from the
I
colour blindness, as such the service of the

I p tltioner be stopped till the further order. The true

 5

and correct copy of the letter dated 18.05.2018

issued by the respondent No.3 to respondent No.4 is

annexed herewith and marked as EXHIBIT "D".

06. That, the petitioner submits that, thereafter

the respondent No.4 issued a letter to the petitioner

Superintendent Government J .J. Hospital as well as

the petitioner in which contended that the petitioner

is a working with the respondent No.4 as a driver in

Depot State Transport, Kalwan and the Karad

Hospital has been issued a report that the petitioner

is suffering from the colour blind, therefore the test of

the petitioner in respect of colour blindness is tested

from the anomoloscope machine by virtue of

instruction given by the State Transport Office,

Bombay, as such the said test be conducted and give

a report as to whether the petitioner is fit to do the

work as a driver with the respondent No.2 to 4. The

true and correct copy of latter dated 16.05.18 issued

by the respondent No. 3 to the petitioner is annexed

herewith and marked as EXHIBIT "E"

.
07 . That, the petitioner subrnits :th a t , pursuant

above said communication,. ·· ,the petitioner

I J.' ' .
 6

131
approached to the J .J. Hospital for examination of

the eyes, thereafter, the J.J . Hospital conducted the

test of the petitioner and issued report whereby

informed to the respondent No.2 to 4 that, the

petitioner is suffering from color blindness 1.e.

moderate deuteranopia and is unable to perform the

du ty· as a driver. The true and correct copy of the

report dated 11.06.2018 issued by J.J. Hospital along

with the test conducted by the hospital are annexed

herewith and marked as EXHIBIT "F".

08. . The petitioner submits that, after receiving

tn .:;:sirid
-,
reports, the respondent No.3 had issued
· ·:

letter dated 10.08.2018 to the petitioner and thereby

inf6nned that the service of the petitioner is came to

be'·t rmi n a ted from the date of letter as the petitioner

is unfit for performing his duty with the respondent

No._.?: to 4 as a driver as the petitioner is suffering

fro.ni. color blindness. The true and correct copy of the

lett dated 10.08.2018 issued by the respondent

No·; 3 to the petitioner is annexed herewith and

marked as EXHIBIT "G".

 7

\2,2--
09. The petitioner submits that, thereafter, the

petitioner filed an application dated 23.08.2018 to

the respondent No.3 for an alternative service,

wherein contended that, the petitioner is serving as

a driver with the respondent No.2 to 4 since

17.12.2004 and has done his service unblemished

and without any stigma. It is further contended that,

the family of the petitioner is depend upon him for

livelihood. It is further contended tiiaf, the petitioner

is not having any income source and no karta person

in his family, as such all the responsibility of his

family upon him, as such the petitioner be provided

an alternate service. The true and correct copy of the

application dated 23.08.2018 made by the petitioner

to the respondent No.3 is annexed herewith and

marked as EXHIBIT "H".

10. That, the petitioner submits that, the

respondent No.3 has relied on the circular issued by

the respondent No.2 and thereby declared that the

petitioner is not entitled to get an alternate service

with the respondent No.2 to 4. The petitioner submits

that, the said circular says that the colour blindness

 8

person is not qualified for an alternative service in

the department. In fact said circular is ultra virus to

the provisions of Section 20 of the Rights of Persons

with . Disability Act, 2016 (hereinafter referred as to

"the said Act") as the petitioner has done the service

with, the respondent since 15 years, when petitioner

was appointed as a driver ·with the respondent No.2

to 4 at that time the petitioner was qualified for the

said post. Hence, the disability which is occurred to

the petitioner is during the performing the duty, as

such the petitioner is an entitled to get the alternate

ser.vice by virtue of the section 20 of the said Act. The

said s ction says that-

20. Non-discrimination 1n employment- (1) No

, ::·Government establishment shall discriminate

, ._:: against any person with disability in any matter

.: , ,.:,f .
••'
, relating to employment
Provided that the appropriate Government
··:,,, I
1. , may, having regard to the type of work carried
_,. ! on in any establishn1ent, by notification and
1., subject to such conditions, if any, exempt any
establishment from the provisions of this

I
I .' [ ::.!· (2)
•'
Every Government establishment shall

I
•. / _ . provide reasonable accommodation and
1
 9

appropriate barrier free and conducive

environment to employees with disability.
(3) No promotion shall be denied to a person
merely on the ground of disability.
(4) No Government establishment shall
dispense with or reduce in rank, an employee
who acquires a disability during his or her
service.
Provided that, if an employee after

acquiring disability is not suitable for the posts

he was holding, shall 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.

(5) The appropriate Government may frame

policies for posting and transfer of employees

with disabilities.

11. The petitioner submits that, the circular

dated 29.07.2016 issued by the respondent No.3 is

.''

an arbitrary, illegal and ultra viru to the section 20

 of the said Act as the petitioner has been occurred

disability in performing his duty with the respondent

No.2 to 4, the respondent No.2 has not appreciated

that, the petitioner is suffering from the colour

blindness after rendering the serving of 15 years with

respondent No. 2 to 4, as such the petitioner is not

responsible for the said disease, hence the circular

issued by the respondent No.2 is ultra virus to the

section 20 of the said Act. The true and correct copy

of the circular dated 29.07.2016 issued by the

respondent No.2 is annexed herewith and marked as

EXHl:BIT "I".

12. · That, the petitioner submits that, it would

not be out of place to mention here that the

respondent No.2 has issued a circular on 29.09.2017

in which the respondent No.2 has taken the decision

in 'respect of providing an alternative service to

l

err;i.ployees who is suffering from disability to vision

wh;ile performing his duty. The true and correct the

I
copy of circular dated 29.09.2017 is annexed
I
II
herewith and marked as EXHIBIT "J".

I
 1

13. The petitioner submits that, the Article 14

15 and 21 of the Constitution of India guarantees the

right of life as well as equality of law. The said

circular is an excessive and arbitrary s well as ultra

virus to the section 20 of the said Act as the

petitioner is not responsible for suffering colour

-blindness, as such it is needs to be declared the

circular dated 29.07.2016 is an unconstitutional and

against to the Article 14, 15 and 21 of the

' ,11111'' I

Constit11tion of India.

14. That, the petitioner submits that, the

respondents have terminated the service of the

petitioner without considering the provisions of the

Rights of Persons with Disability Act, 2016, as such,

the termination of the petitioner is deserves to be

quashed and set aside.

That, the petitioner submits that, the

circular dated 29.07.2016 is needs to be quashed

and set aside after holding the circular 1s

unconstitutional and. against the fundamental rights

guarantees under Article 14 15•· d 21 of the

Constitution of India as the respondent No.2 to 4

 1

have been protected to other employees up to

18.04.2015, as such the respondent No.2 to 4 have

done discrimination with the petitioner. Pursuant to

the circular dated 29.07.2016 the respondent No.2 to

4 have been stopped the salary of the petitioner and

refused to provide an alternative service to the

petitioner. As such, the operation of the impugned

circular dated 29.07.2016 kindly be stayed during

the pendency and final disposal of the present writ

petition as the petitioner has strong prima facie case

is made out for quashing and setting aside the above

said circular.
:, .
16. That, the petitioner has not filed any other

petition before this Hon'ble High Court and before the

f, . ,

A:pex Court touching to the subject matter of the

present writ petition and this writ petition is coming

.. ,
• I'-

for fpe first time in respect of this subject matter of

this wtj.t petition.

. ,.:. , L

17. That, the petitioner undertakes to supply

English translation of Marathi documents, if

J -i:;:;J .;
''
<:!g¢ssary.
. . L..,..
 1

18. That, the petitioner has not received caveat

notice from the respondents so far.

19. That, the petitioner craves leave to add

amend, alter, delete or modified any of the

contentions or any of the grounds raised 1n

paragraphs of this writ petition, if necessary.

20. THE PETITIONER THEREFORE PRAYS THAT:

A) This Writ Petition may kindly be allowed.

B] Rule may kindly be made absolute by

allowing this Writ Petition, thereby

declaration that, the circular dated

29.07.2016 issued by the respondent No.2

is unconstitutional and against to the

Article 14, 15 and 21 of the Constitution of

India.

C] Rule may kindly be made absolute by

allowing this Writ petition, thereby

declaration that, the circular dated

29.07.2016 issued by the respondent No.2

is an ultra virus to the section 20 of the

Rights of Persons with Disabilities Act,

2016.
 1

D] Rule may kindly be made absolute by

allowing this Writ Petition, the letter dated

10.08.2018 issued by the respondent No.3

to the petitioner may kindly be quashed

and set-aside.

Rule may kindly be made absolute by

allowing this Writ Petition, thereby

directions to the respondents to provide the

alternative service to the petitioner by

virtue of the section 20 of the Rights of

Persons with Disabilities Act, 2016.

Rule may kindly be made absolute by

allowing this Writ Petition, thereby direction

·'
to the respondents to pay the back-wages

to the petitioner as the decision taken by

the respondent No.2 to 4 is illegal and

contrary to the provisions of the law.

G] Pending the hearing and final disposal of

the present Writ Petition the letter dated

10.08.2018 issued by the respondent No.3

to the petitioner may kindly be stayed.

li1] : Pending the hearing and final disposal of

.
1
l l,F
-''::,. :
I
the present Writ Petition, the respondents
 1

may kindly be directed to provide

alternative service to the petitioner.

I] Pending the hearing and final disposal of

the present Writ Petition, the execution,

implementation and operation of the circular

dated 29.07.2016 issued by the respondent

No.2 may kindly be stayed.

J] Pending the hearing and final disposal of

the present Writ Petition, respondent No. 2

to 4 kindly be directed to provide an

alternative service to the petitioner

forthwith.

K] Ad-interim relief in terms of prayer clause

"G","H" ,"I" & "J" may kindly be granted.

L] Any other suitable and equitable relief

deems fit in the interest of justice may
kindly be granted 1n favour of the
petitioner.

AND FOR THIS ACT OF KINDNESS AND JUSTICE THE

PETITIONER AS ON DUTY BOUND SHALL EVER PRAY.

Date:- /08/2019 ( K. E)
Place :- Bombay. Advocate for Petitioner
 16

VERIFICATION
I, Ramchandra S/ o Savaliram Chavan, Age:

42 years, Occu.: Nil, R/o. Bordaiwat Tq. Kalwan,

Dist. Nashik, do hereby state on solemn affirmation

that the contents of this Writ Petition from Para

No.

01 to 20 and prayer Clause (A) to (L) are read over

and explained to me in Marathi and the same are

true and correct to the best of my knowledge.

at Aurangabad on this 19

Deponent

:<•<
D_& jT!J S
NTAINSAdvo
,..__,.._PAGES
! (0R
 1
l42-
ANNEXURE- p Is-

IN THE IDGH COURT OF JUDICATURE OF BOMBAY

CML APPELLATE JURISDICTION

CIVIL WRIT PETITION No.'f3:6?f: OF 2019

DISTRICT : NASHIK
In the matter of Article 226 &
227 of the Constitution of
India.
AND
In the matter of Article 14, 15
& 21 of the Constitution of
India.
AND
In the matter of Section 20 of
the Rights of Persons with
Disabilities Act, 2016.

AND
In the matter of Circular dated
29.07.2016 issued by the
respondent No.2.

AND
In the matter of letter dated
10.08.2018 dated issued by
the respondent No.3 to the
I petitioner.
I AND
I In the matter of Circular dated
27.09.2017 issued by the
respondent No.2.
 2

As h ok S / o Buwaji
Pagar, Age : 54 years,
Occu .: Nil ,
R/ o. At J:ost Wa dner, (Khaku rdi ),
Tq. Male ga on, Dist. Nashik.....................PETITIONER

VERSUS

1. The State of Maharashtra,

Through it's the Principle Secretary
Maharashtra State Transport
Department, Mantralaya,
Mumbai-32.

2. The State of Maharashtra,

Road and Transport Corporation
Maharashtra Wahatuk Bhavan,
Dr. Anandrao Nair Marg,
Mumbai-44008.

3. The Divisional Controller

State Transport Corporation,
.. : Nashik, Tq. & Dist. Nashik.
• I

4. The Depot Manager,

State Transport Corporation,
Malegaon, Tq. Malegaon,
Dist. Nashik................................. RESPONDENTS

. (Copy to be served Respondent No.1

· upon the G.P. Office High Court of
J udica tu re' of Bombay )

To,
THE HON'BLE CHIEF JUSTICE
AND OTHER HON'BLE PUISNE
JUDGES OF THE HIGH COURT OF
JUDICATURE AT BOMBAY.

I THE HUMBLE WRIT PETITION OF

THE ABOVE NAMED PETITIONER
I
I
MOST RESPECTFULLY SHOWETHS AS UNDER:-
 3

01. This writ petition is presented and filed

against the Circular dated 29.07.2_016 issued by

the respondent No. l, whereby the colour blindness

persons have been declared to disqualify for an

alternative service in the department.

02. That, petitioner submits that, the petitioner

is law abiding citizen of India and residing above

mentioned address. The petitioner W?.,S appointed on -

9.06.2000 as a driver with the respondent No.2 to 4

at Nashik Division Nashik Depot. Thereafter, the

petitioner came to be permanent in service. The

petitioner has rendered his unblemished service and

without any stigma for 19 years with the respondent

No.2 to 4. The true and correct copy of appointment

letter 09.06.2000 issued by Nashik Division, Nashik

is annexed herewith and marked as EXHIBIT "A".

03. That, the petitioner submits that, the

respondent No. 3 had issued a letter dated

21.12.2017 to the Bapaye Hospital for routine check

up i.e. yearly Check-up and whereby directed to the

petitioner to check his eyes in Bapaye Hospital. The

true and correct copy of the letter issued by the

 4

respondent No.5 on21.12.2017 to the Bapaye

Hospital is annexed herewith and marked as

EXHIBIT "B".

04. That, the petitioner submits that,

thereafter, the petitioner approached to the Bapaye

Hospital and examined his eyes. The Bapaye

Hospital has issued a report and informed that, the

petitioner is suffering from partial colour defect. The

true and correct copy of the report issued by the

Bapaye Hospital is annexed herewith and marked as

EXHIBIT "C".

05. That, the petitioner submits that, after

recei ng the above said report the respondent No.3

'_ 1 '

is_sued a letter to the respondent No.4 and informed

tfo;t the petitioner is suffering from the partial colour

efect, as such the service of the petitioner be

stopped till the further order. The true and correct

copy of the letter dated 16.05.2018 issued by the

'

respondent No.3 to respondent No.4 is annexed

' !,

herewith and marked as EXHIBIT "D".

;,

06/ That, the petitioner submits that,

th reafter, the respondent No.4 issued a letter to the

 5

Superintendent Government J .J. Hospital in which

contended that the petitioner is a working with the

respondent No.4 as a driver in Depot State Transport,

Malegaon and the Bapaye Hospital has been given

report that the petitioner is sufferin•g from the colour

vision defect, therefore· the test of the petitioner in

respect of colour blindness is tested from the

anomoloscope machine by virtue of instruction given

by the State Transport Office, Bombay, as such the

• m ,u,.

said test be conducted and give a report as to

whether the petitioner is capable to·do the work as a

driver with the respondent No.2 to 4. The true and

correct copy of the letter dated 16.05.2018 issued by

respondent No.3 to J.J. Hospital is annexed herewith

and marked as EXHIBIT "E".

07. The petitioner submits that, after above

said communication, the petitioner approached to the

J.J. Hospital for examination of the eyes, thereafter,

the J .J. Hospital examined to the petitioner and

issued report whereby informed to the respondent

No.2 to 4 that, the petitioner is suffering color

,· :·
blindness i.e. Protonopia and is unable to perform the
 6

duty as a driver. The true and correct copy of the

reports issued by J.J. Hospital along with the test

conducted by hospital are annexed herewith and

marked as EXHIBIT "F".

08. The petitioner submits that, after receiving

the said reports, the respondent No.3 had issued

letter, dated 10.08.2018 to the petitioner and thereby

informed that the service of the petitioner is came to

be terminated from the date of letter as the petitioner

is unfit for performing his duty with the respondent

No.2 to 4 as a driver as the petitioner is suffering

frbr:ii'color blindness. The true and correct copy of the

letter dated 10.08.2018 issued by the respondent

No.3 to the petitioner is annexed herewith and

marked as EXHIBIT "G".

09 '. The petitioner submits that, thereafter, the

pe tioner filed an application dated 23.08.2018 to

the respondent No.3 for an alternative service,

vth.erein contended that, the petitioner is serving as a

I driver with the respondent No.2 to 4 since 29.6.1997

II and he has done his service unblemished and
without any stigma. It is further contended that, the

I
 7

family of the petitioner 1s depend upon him for

livelihood. It is further contended that, the petitioner

is not having any income source and no karta person

in his family, as such all the responsibility of his

family upon him, as such the petitioner be provided

an alternate service. The true and correct copy of the

application dated 23.08.2018 made by the petitioner

to the respondent No.3 1s annexed herewith and

marked as EXHIBIT "H".

10. The petitioner submits that, after

submitting the above said application, the

respondent No.3 issued a letter to the petitioner and

informed that the service of the petitioner is

terminated by virtue of the circular dated 29.07.2016

as the petitioner is unfit for performing his duty as a

driver due to the colour blindness. It is further

informed that, the application made by the petitioner

for alternate service is received to respondent No.3,

however the petitioner is not entitled to get a an

alternate service by virtue of the circular dated

I
29.07.2016 as the circular said that who has
I
occurred the disability in respect of the colour
 8

blindness are not entitled for alternate service. The

true and correct copy of the letter dated 06.09.18

issued by the respondent No.3 to the petitioner 1s

annexed herewith and marked as EXHIBIT "I".

11. The petitioner submits that, the respondent

No.3 has relied on the circular issued by the

resp ndent No.2 and thereby declared that the

petitioner is not entitled to get an alternate service

with the respondent No.2 to 4. The petitioner submits

that, the said circular says that the colour blindness

person is not qualified for an alternative service in

the··department. In fact said circular is ultra virus to

the ..p, rovisions of Section 20 of the Rights of

Persons witl1. Disability Act, 2016 (hereinafter

referred as to

"the said Act") as the petitioner has done the service

witl} the respondent since 09 years, when petitioner

••
was appointed as a driver with the respondent No.2
.. ·:
to 4 at that time the petitioner was qualified for the
'· ·1

I said post. Hence, the disability which is occurred to

I the petitioner is performing the duty, as such the

I
petitioner is an entitled to get the alternate service by
I
 9

I
I
 1

virtue of the section 20 of the said Act. The said

section says that-

20. Non-discrimination 1n employment- (1) No

Government establishment shall discriminate

'.

against any person with disability in any matter

relating to employment

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, exempt any

establishment from the provisions of this

section.

(2) Every Government establishment shall

provide reasonable accommodation and

appropriate barrier free and conducive

environment to employees with disability.

(3) No promotion shall be denied to a person

merely on the ground of disability.

(4) No Government establishment shall

dispense with or reduce in rank, an employee

 who acquires a disability during his or her

service.

Provided that, if an employee after

acquiring disability is not suitable for the posts

, he was holding, shall 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.

; ;,
. {5) The appropriate Government may frame
·
. policies for posting and transfer of employees
'.

with disabilities.

12. The petitioner submits that, the circular

dated 29.07.2016 issued by the respondent No.3 is

an arbitrary, illegal and ultra virus

I to the section 20 of the said Act as the petitioner
has been occurred

disability in performing his duty with the respondent , \

No.2 to 4, the respondent No.2 has not appreciated
 1

that, the petitioner is suffering from the colour

blindness after rendering the serving of 09 years with

respondent No. 2 to 4, as such the petitioner is not

responsible for the said disease, hence the circular

issued by the respondent No.2 is ultra virus to the

section 20 of the said Act. The true and correct copy

of the circular dated 29.07.2016 issued by the

respondent No.2 is annexed herewith and marked as

EXHIBIT "J".

13. That, the petitioner submits that, it would

not be out of place to mention here that the

respondent No.2 has issued a circular on 29.09.2017

in which the respondent No.2 has taken the decision

in respect of providing an alternative service to

employees who is suffering from disability to vision

while performing his duty. The true and correct the

copy of circular dated 29.09.2017 is annexed

herewith and marked as EXHIBIT "K".

14. That, the petitioner submits that, though

I · ; .◊ - . •f"f
the above representation was made to the respondent

I SU' f
r.o vt.
No.3 for alternate service but in, vain , therefore the

petitioner again made an application on 28.06.2019

305

I
CQ , 110..:
 1

and requested to the respondent No.2 to provide an

alternate service in the department. The true and

correct copy of the application dated 28.06.2019 is

annexed herewith and marked as EXHIBIT "L".

15. The petitioner submits that, the Article 14 15

and 21 of the Constitution of India guarantees the

right of life as well as equality of law. The said

circular is an excessive and arbitrary as well as ultra

virus to the section 20 of the said Act as the

petitioner is not responsible for suffering colour

blindness, as such it is needs to be declared the

citcular dated 29.07.2016 is an unconstitutional and

against to the Article 14, 15 and 21 of the

Constitution of India.

16. That, the petitioner submits that, the

respondents have terminated the service of the

petitioner without considering the provisions of the

Rights of Persons with Disability Act, 2016, as such,

the termination of the petitioner 1s deserves to be

I q\l shed and set aside.

17. That, the petitioner submits that, the

 1
circular dated 29.07.2016 is needs to be quashed
 1

and set aside after holding the circular is

unconstitutional and against the fundamental rights

guarantees under Article 14 15 ' an d 21 of the

Constitution of India as the respondent No.2 to 4

have been protected to other employees up to

18.04.2015, as such the respondent No.2 to 4 have

done discrimination with the petitioner. Pursuant to

the circular dated 29.07.2016 the respondent No.2 to

4 have been stopped the salary of .the petitioner and

refused to provide an alternative service to the

11c t iti oner. As such, the operation of the

impugned

circular dated 29.07.2016 kindly be stayed during

the µendency and final disposal of the present writ

petition as the petitioner has strong prim.a facie case

is made out for quashing and setting aside the above

said circular.

18. That, the petitioner has not filed any other

petition before this Hon'ble High Court and before the

Apex Court touching to the subject matter of the

present writ petition and this writ petition is coming

for the first time in respect of this subject matter of

this writ petition.

 1

19. That, the petitioner undertakes to supply

English translation of Marathi documents, if

n eces s ary .

20. That, the petitioner has not received caveat

notice from the respondents so far.

21. That, the petitioner craves leave to add

amend, 'alter, delete or modified any of the

contentions or any of the grounds raised 1n

paragraphs of this writ petition, if necessary.

22. THE PETITIONER THEREFORE PRAYS THAT:

A] This Writ Petition may kindly be allowed.
BJ · ·.: Rule may kindly be made absolute by
;··
.....:· j; •.j: : ;
allowing this Writ Petition, thereby

declaration that, the circular dated

29.07.2016 issued by the respondent No.2

is unconstitutional and against to the

Article 14, 15 and 21 of the Constitution of

India.

CJ Rule may kindly be made absolute by

allowing this Writ petition, thereby
I
I declaration that, the circular dated \,
I
29.07.2016 issued by tpe respondent No.2

is an ultra virus to th section 20 of the

 1

Rights of Persons with Disabilities Act,

2016.

D] Rule may kindly be made absolute by

allowing this Writ Petition, the letter dated

10.08.2018 issued by the respondent No.3

to the petitioner may kipdly be quashed

and set-aside.

E] Rule may kindly be made absolute by

allowing this Writ Petition, thereby

directions to the respondents to provide the

alternative service to the petitioner by

virtue of the section 20 of the Rights of

Persons with Disabilities Act, 2016.

F] Rule may kindly be made absolute by

allowing this Writ Petition, thereby direction

to the respondents to pay the back-wages

to the petitioner as the decision taken by

the respondent No.2 to 4 is illegal and

contrary to the provisions of the law.

GJ Pending the hearing and final disposal of

the present Writ Petition the letter dated

10.08.2018 issued by the respondent No.3

to the petitioner may kindly be stayed.

 1

H] Pending the hearing and final disposal of

the present Writ Petition, the respondents

may k4P-dly be directed to provide

alternative service to the petitioner.

I] Pending the hearing and final disposal of

the present Writ Petition, the execution,

implementation and operation of the circular

dated 29.07.2016 issued by the respondent

No.2 may kindly be stayed.

J] Pending the hearing and final disposal of

the present Writ Petition, respondent No. 2

to 4 kindly be directed to provide an

alternative service to the petitioner

forthwith.

K] Ad-interim relief in terms of prayer clause

"G" ,"H" ,"I" & "J" may kindly be granted.

LJ Any other suitable and equitable relief

deems fit in the interest of justice may
kindly be granted in favour of the
I•

petitioner.
AND FOR Tms ACT OF KINDNESS AND JUSTICE THE
I PETITIONER AS ON DUTY BOUND SHALL EVER PRAY.

I
I
Date:- /08/2019 ( K. . SHERMALE )
I Pl 9e :- Bombay. Advocate for Petitioner

I
 1

VERIFICATION

I, Ashok S/ o Buwaji Pagar, Age: 54 years,

Occu.: Nil, R/o. At Post Wadner, (Khakurdi), Tq.

Malegaon, Dist. Nashik, do hereby state on solemn

affirmation that the contents of this Writ Petition

from Para No. 01 to 22 and prayer Clause (A) to (L)

are read over and explained to me in Marathi and the

z
0

samearetrueandcorrecttothebestofmy

knowledge. .......

Hence verified at Aurangabad on this 1-Jt·

Deponent

(Ashok S / o Buwaji Pagar)

TRUE COPY
 1

I S2f
ANNEXURL -Pl b

IN THE IDGH COURT OF JUDICATURE OF BOMBAY

CML APPELLATE JURISDICTION
I ,o, t_2' 2-
CIVIL WRIT PETITION NO. -"' . -OF 2019

DISTRICT : NASmK

In the matter of Article 226 &

227 of the Constitution
of India.
AND
In the matter of Article 14, 15
& 21 of the Constitution of
India.
AND
In the matter of Section 20 of
the Rights of Persons with
Disabilities Act, 2016.

AND
In the matter of Circular dated
29.07.2016 issued by the
respondent No.2.
 2

AND
In the matter of letter dated
26.06.2018 dated issued by
the respondent No.3 to the
petitioner.
AND

In the matter of Circular dated

27.09.2017 issued by the
respondent No.2.

Ashok S/o Barku Sanap,

Age: 55 years, Occu.: Nil,
R/o. Makhmalabad Road, Uday Colany,
Near Mane School, Gitkanch, Panchavati,
Nashik Tq &,Dist. Nashik.......................PETITIONER

VERSUS

1. The State of Maharashtra,

Through it's the Principle Secretary
Maharashtra State Transport
Department, Mantralaya,
Mumbai-32.

2. The State of Maharashtra,

Road and Transport Corporation
Maharashtra Wahatuk Bhavan,
Dr. Anandrao Nair Marg,
Mumbai-44008.

3. . The Divisional Controller

State Transport Corporation,
Nashik, Tq. & Dist. Nashik.

4. The Depot Manager,

State Transport Corporation,
Nashik-1, Tq. Nashik,
Dist. Nashik.................................RESPONDENTS

(Copy to be served Respondent No.1

upon the G.P. Office High Court of
Judicature of Bombay)
 3

To,
THE HON'BLE CHIEF JUSTICE
AND OTHER HON'BLE PUISNE
JUDGES OF THE WGH COURT OF
JUDICATURE AT BOMBAY.

THE HUMBLE WRIT PETITION OF

THE ABOVE NAMED PETITIONER

MOST RESPECTFULLY SHOWETHS AS UNDER:-

01. This writ petition is presented and filed

against the Circular dated 29.07.2016 issued by the

respondent No. I, whereby the colour blindness

persons i.e. the employees have been declared to

disqualify for an alternative service 1n the

department.

02. That, petitioner submits that, the petitioner

is law abiding citizen of India and residing above

mentioned address. The petitioner was appointed on

29.04.1994 as a driver with the respondent No.2 to 4

at Nashik Division Nashik Depot on the basis of

temporary thereafter the petitioner came to be

permanent in the service. The petitioner has rendered

his unblemished service and without any stigma for

25 years with the respondent No.2 to 4. The true and

correct copy of appointment letter 23.09.1999 issued

 4

by Nashik Division, Nashik is annexed herewith and

marked as EXHIBIT "A".

03. That, the petitioner submits that, the

respondent No.3 had issued a letter dated to the

Bapaye Hospital for routine check-up i.e. yearly

cheak-up and whereby directed to the petitioner to

c eck his eyes in Bapaye Hospital. The true and

correct copy of the letter issued by1the respondent

No.4 on 21. 12 .20 17 to the Bapaye Hospital is

annexed herewith and marked as EXHIBIT "B".

04. That, the petitioner submits that,

thereafter, the petitioner approached to the Bapaye

H' ospital and examined his eyes. The Bapaye Hospital

has issued a report and informed that, the petitioner

is suffering from partial colour defect and further

informed that the petitioner is not fit for job of driver.

The true and correct copy of the report issued by the

Bapaye Hospital is annexed herewith and marked as

EXHIBIT "C".

05. That, the petitioner submits that after

receiving the above said report the respondent No.3

issued a letter dated 18.05.2018 to the respondent

 5

No.4 and informed that the petitioner is suffering

from the colour blindness, as such the service of the

petitioner is terminated from service . The true and

correct copy of the letter dated 18.05.2018 issued by

the respondent No.3 to petitioner is annexed herewith

and marked as EXHIBIT "D".

06. That, the petitioner submits that, thereafter

the respondent No.4 issued a letter to Superintendent

Government J .J. Hospital as well as the petitioner in

which contended that the petitioner is a working with

the respondent No.4 as a driver in Depot State

Transport, Kalwan and the Karad Hospital has been

issued a report that the petitioner is suffering from

partial vision defect, therefore the test of the

petitioner in respect of colour blindness is tested from

the anomoloscope machine by virtue of instruction

given by the State Transport Office, Bombay, as such

the said test be conducted and give a report as to

whether the petitioner is fit to do the work as a driver

with the respondent No.2 to 4. The true and correct

copy of latter dated 26.04.18 issued by the

 6

respondent No. 3 to the petitioner is annexed

herewith and marked as EXHIBIT "E"

07. That, the petitioner submits that, pursuant

to above said communication, the petitioner

approached to the J .J. Hospital for examination of

the eyes, thereafter, the J.J. Hospital conducted the

test of the petitioner and issued report whereby

informed to the respondent No.2 to 4 that, the

petitioner is suffering from color blindness 1.e.

Deuteranopia and is unable to perform the duty as a

driver. The true and correct copy of the report dated

04.06.2018 issued by J.J. Hospital along with the

test conducted by the Hospital are annexed herewith

and marked as EXHIBIT "F".

08. The petitioner submits that, after receiving

the said reports, the respondent No.3 had issued
!'

letter dated 26.06.2018 to the petitioner and thereby

informed that the service of the petitioner is came to

be terminated from the date of letter as the petitioner

is unfit for performing his duty with the respondent

No.2 to 4 as a driver as the petitioner is suffering

from color blindness. The true and correct copy of the

 7

letter dated 26.06.2018 issued by the respondent

No.3 to the petitioner is annexed herewith and

marked as EXHIBIT "G".

09. The petitioner submits that, thereafter, the

petitioner filed an application dated 05.07.2018 to

the respondent No.3 for an alternative service1

wherein contended that, the petitioner is serving as a

driver with the respondent No.2 to 4 since

17.12.2004 and has done his service unblemished

and without any stigma. It is further contended that,

the family of the petitioner is depend upon him for

livelihood. It is further contended that, the petitioner

is not having any income source and no karta person

in his family, as such ' all the responsibility of his

family upon hi , assuch the petitioner be provided

an alternate service. The true and correct copy of the

application dated 05.07.2018 made by the petitioner

to the respondent No.3 is annexed herewith and

marked as EXHIBIT "H".

10. That, the petitioner submits that, after

submitting the above said application, the

respondent No.3 issued-a letter to the petitioner and

 8

informed that the service of the petitioner is

terminated by virtue of the circular dated 29.06.2016

as the petitioner is unfit for performing his duty as a

driver due to the colour blindness. It is further

informed that, the application made by the petitioner

for alternate service is received to respondent No.3,

however the petitioner is not entitled to get a an

alternate service by virtue of the circular dated

03.08.2018 as the circuiar said that who has

occurred the disability in respect of the colour

blindness are not entitled for alternate service. The

true and correct copy of the letter dated 03.08.2018

issued by the respondent No.3 to the petitioner is

annexed herewith and marked as EXHIBIT "I"

11. That, the petitioner submits that, the

respondent No.3 has relied on the circular issued by

the respondent No.2 and thereby declared that the

petitioner is not entitled to get an alternate service

•I

with the respondent No.2 to 4. The petitioner submits

.
BEFORE ME
that, the sai<;i circular says that the colour blindness

person is not qualified for an alternative service in

the department. In.,_ fact said. circular is ultra virus

to
 9

the provisions of Section 20 of the Rights of Persons

with Disability Act, 2016 (hereinafter referred as to

"the said Act") as the petitioner has done the service

with the respondent since 15 years, when petitioner

was appointed as a driver with the respondent No.2

to 4 at that time the petitioner was qualified for the

said post. Hence, the disability which is occurred to

the petitioner is during the performing the duty, as

such the petitioner is an entitled to get the alternate

service by virtue of the section 20 of the said Act. The

said section says that-

20. Non-discrimination 1n employment- (1) No

Government establishment shall discriminate
against any person with disability in any matter
relating to employment
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, exempt any
establishment from the provisions of this
section.
(2)
I
Every Government establishment shall
provide reasonable accommodation and
appropriate barrier free and conducive
environment to employees with disability.
 1

(3) No promotion shall be denied to a person

merely on the ground of disability.
(4) No Government establishment shall
dispense with or reduce in rank, an employee
who acquires a disability during his or her
service. •·
Provided that, if an employee after

acquiring disability is not suitable for the posts

he was holding, shall 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.

(5) The appropriate Government may frame

policies for posting and transfer of employees

with disabilities.

12. The petitioner submits that, the circular

dated 29.07.2016 issued by the respondent No.3 is

an arbitrary, illegal and ultra virus to the section 20

of the said Act as the petitioner has been occurred

disability in performing his duty with the respondent

 1

No.2 to 4, the respondent No.2 has not appreciated

that, the petitioner is suffering from the colour

blindness after rendering the serving of 15 years with

respondent No. 2 to 4, as such the petitioner is not

responsible for the said disease, hence the circular

issued by the respondent No.2 is ultra virus to the

section 20 of the said Act. The true and correct copy

of the circular dated 29.07.2016 issued by the

respondent No.2 is annexed herewith and marked as

EXHIBIT "J".

13. That, the petitioner submits that, it would

not be out of place to mention here that the

respondent No.2 has issued a circular on 29.09.2017

in which the respondent No.2 has taken the decision

in respect of providing an alternative service to

employees who is suffering from disability to vision

while performing his duty. The true and correct the

BEE. copy of circular dated 29.09.2017 is annexed

herewith and marked as EXHIBIT "K".

M0E
J,t p 14. That, That, the petitioner submits that,
lio ?nd6i
e9. · JS
though the above representation was made to the

respondent No.3 for alternate service but in vain,

 1

therefore the petitioner again made an application on

28.06.2019 and requested to the respondent No.2 to

provide an alternate service in the department. The

true and correct copy of the application dated

28.06.2019 is annexed herewith and marked as

EXHIBIT "L".

15. The petitioner submits that, the Article 14

15 and 21 of the Constitution of India guarantees the

right of life as well as equality of law. The said

circular is an excessive and arbitrary as well as ultra

virus to the section 20 of the said Act as the

petitioner is not responsible for suffering colour

f

blindness, as such it is needs to be declared the

circular dated 29.07.2016 is an unconstitutional and

against to the Article 14, 15 and 21 of the

Constitution of India.

16. That, the petitioner submits that, the

respondents have terminated the service of the

petitioner without considering the provisions of the

Rights of Persons with Disability Act, 2016, as such,

the termination of the petitioner is deserves to be

quashed and set aside.

 1

16. That, the petitioner submits that, the

circular dated 29.07.2016 is needs to be quashed

and set aside after holding the circular 1s

unconstitutional and against the fundamental rights

guarantees under Article 14 15 and 21 of the

Constitution of India as the respondent No.2 to 4

have been protected to other employees up to

18.04.2015, as such the respondent No.2 to 4 have

done discrimination with the petitioner. Pursuant to

the circular dated 29.07.2016 the respondent No.2 to

4 have been stopped the salary of the petitioner and

refused to provide an alternative service to the

petitioner. As such, the operation of the impugned

circular dated 29.07.2016 kindly be stayed during

the pendency and final disposal of the present writ

petition as the petitioner has strong prima facie case

is made out for quashing and setting aside the above

said circular.

18. That, the petitioner has not filed any other

petition before this Hon'ble High Court and before the

Apex Court touching to the subject matter of the

present writ petition and this writ petition is coming

 1

for the first time in respect of this subject matter of

this writ petition.

19. That, the petitioner undertakes to supply

English translation of Marathi documents, if

necessary.

20. That, the petitioner has not received caveat

notice from the respondents so far.

21. That, the petitioner craves leave to add

amend, alter, delete or modified any of the
contentions or any of the grounds raised m
paragraphs of this writ petition, if necessary.
22. THE PETITIONER THEREFORE PRAYS THAT:

A] This Writ Petition may kindly be allowed.

BJ Rule may kindly be made absolute by

allowing this Writ Petition, thereby

declaration that, the circular dated

29.07.2016 issued by the respondent No.2

is unconstitutional and against to Article

14, 15 & 21 of the Constitution of India.

C] Rule may kindly be made absolute by

allowing this Writ petition, thereby

declaration that, the circular dated

29.07.2016 issued by the respondent No.2

 1

is an ultra virus to the section 20 of the

Rights of Persons with Disabilities Act,

2016.

D] Rule may kindly be made absolute by

allowing this Writ Petition, the letter dated

26.06.2018 issued by the respondent No.3

to the petitioner may kindly be quashed

and set-aside.

E] Rule may kindly be made absolute by

allowing this Writ Petition, thereby

directions to the respondents to provide the

alternative service to the petitioner by

virtue of the section 20 of the Rights of

Persons with Disabilities Act, 2016.

F] Rule may kindly be made absolute by

allowing this Writ Petition, thereby direction

to the respondents ·to pay the back.;wages

to the petitioner as the decision taken by

the respondent No.2 to 4 is illegal and

contrary to the provisions of the law.

G] Pending the hearing and final disposal of

the present Writ Petition the letter dated

 1

26.06.2018 issued by the respondent No.3

to the petitioner may kindly be stayed.

H] Pending the hearing and fmal disposal of

the present Writ Petition, the respondents

may kindly be directed to provide

alternative service to the petitioner.

I] Pending the hearing and final disposal of

the present Writ Petition, the execution,

implementation and operation of the circular

dated 29.07.2016 issued by the respondent

No.2 may kindly be stayed.

J] Pending the hearing and final disposal of

this Writ Petition, respondent No. 2 to 4

kindly be directed to provide an alternative

service to the petitioner forthwith.

K] Ad-interim relief in terms of prayer clause

"G","H" ,"I" & "J" may kindly be granted.
L] Any other suitable and equitable relief
deems fit in the interest of justice may
kindly be granted m favour of the
petitioner.
AND FOR THIS ACT OF KINDNESS AND JUSTICE THE
PETITIONER AS ON DUTY BOUND SHALL EVER PRAY.

Date :- /09/2019 ( K.N. SHERMALE )

Place:- Bombay. Advocate for Petitioner
 1

VERIFICATION

I, Ashok S/ o Barku Sanap, Age: 55

years, Occu.: Nil, R/o. Makhmalabad Road, Uday

Colany, Near Mane School, Gitkanch, Panchavati,

Nashik Tq & Dist. Nashik, do hereby state on solemn

affirmation that the contents of this Civil Writ Petition

Para No. 01 to 22 and prayer Clause (A) to (L)

read over and explained to me in Marathi and the

e are true and correct to the best of my

wledge.
 1

ANNEXURE-f /1-

IN THE IDGH COURT .OF JUDICATURE OF BOMBAY

CML APPELLATE JURISDICTION

CIVIL WRIT PETITIO,N No. i p/1 /;..oF 2019

DISTRICT : NASffiK
In the matter of Article 226 &
227 of the Constitution of
India.
AND
In the matter of Article 14, 15
& 21 of the Constitution of
India.
AND
In the matter of Section 20 of
the Rights of Persons with
Disabilities Act, 2016.

AND
In the matter of Circular dated
29.07.2016 issued by the
respondent No.2.

AND
In the matter of letter dated
11.08.2018 dated issued by
the respon den t No.2 to the
•

petitioner.
AND
 2

In the matter of Circular dated

27.09.2017 issued by the
respondent No.2.

Daga S/ o Bhaurao Bhadane,

Age: q6 years, Occu.: Nil,
R/ o. Morane, Post- Ambason,
Tq. Satana, Dist. Nashik. ... PETITIONER

VERSUS

1. The State of Maharashtra,

Through it's the Principle Secretary
Maharashtra State Transport
Department, Mantralaya,
Mumbai-32.

2. The State of Maharashtra,

Road and Transport Corporation
Maharashtra Wahatuk Bhavan,
,Dr. Anandrao Nair Marg,
Mumbai-44008.

3. ,. ,:;rh e Divisional Controller

· 'State Transport Corporation,
Nashik, Tq. & Dist. Nashik.

4. i tthe Depot Manager,

State Transport Corporation,
_Nashik-1, Tq. & Dist. Nashik......RESPONDENTS

: · jCopy to be served Respondent No. l

_ . 1.1pon the G.g. Office High Court of
.,Judicature of Bombay )
. ':

T_if;/J/ _,
,· ; :T HE HON'BLE CHIEF JUSTICE
, ,: AND OTHER HON'BLE PUISNE
_1 ;:JU DGES OF THE HIGH COURT OF
· ,

. . .,JUDICATURE AT BOMBAY.
,, • •
.,
..
,

I •

.
.
 2
THE
HUMBLE
WRIT
PETITION
OF THE
ABOVE
NAMED
PETITIONER
 3

MOST RESPECTFULLY SHOWETHS AS UNDER:-

01. This writ petition is presented and filed

against the Circular dated 29.07.2016 issued by the

respondent No. l, whereby the colour blindness

persons have been declared to disqualify for an

alternative service in the department.

02. That, petitioner submits that, the petitioner

is law abiding citizen of India and residing above

mentioned address. The petitioner was appointed on

22.10.1992 as a driver with the respondent No.2 to 4

at Satana Depot. Thereafter, the petitioner came to be

permanent. The petitioner has done his unblemished

service and without any stigma for 25 years with the

respondent No.2 to 4. The true and correct copy of

appointment letter 23.12.1993 issued by Divisional

Controller, Nashik of the State Transport Corporation

is annexed herewith and marked as EXHIBIT "A".

03. That, the petitioner submits that, the

respondent No.3 had issued a letter dated

21.12.2017 for routine check-up i.e. yearly check-up

and whereby directed to the petitiorie:r:_ to check his

eyes in Bapaye Hospital. The true and ,correct copy of

 4

the letter issued by the respondent No.5 on

21.12.2017 to the petitioner is annexed herewith and

marked as EXHIBIT "B".

04. That, the petitioner submits that,

thereafter, the petitioner approached to the Bapaye

Hospital and examined his eyes. The Bapaye Hospital

has issued a report and informed that, the petitioner

is suffering from colour vision defective as such the

further. evaluation is to be needs. The true and

correct copy of the report issued by the Bapaye

Hospital is annexed herewith and marked as

EXHIBIT "C".

05. That, the petitioner submits that, thereafter

the p<r-titioner, the respondent No.4 issued a letter to

the ':.- S :uperin ten den t Government J.J. Hospital and

inforriled that, the petitioner was referred to the

BapciJe Hospital, Nashik for examination of eyes and

th-e p aye Hospital, Nashik has issued a report that

..
the petitioner is suffering from Colour Version

De:fettive, therefore the test of the petitioner in

resp t of colour blindness 1s tested from the

an'orpoloscope machine by virtue of instruction

 4
given
 5

by the State Transport Office, Bombay, as such the

said test be conducted and give the report as to

whether the petitioner is capable to do the work as a

driver with the respondent No.2 to 4. The true and

correct copy of the letter dated 26.04.2018 issued by

respondent No.3 to J.J. Hospital is annexed herewith

and marked as EXHIBIT "D".

06. The petitioner submits th,a t , after above

said communication, the petitioner approached to the

J .J. Hospital for examination of the eyes, thereafter,

the J .J. Hospital examined to the petitioner and

issued report whereby informed to the respondent

No.2 to 4 that, the petitioner is suffering color colour

deficiency i.e. deuteranopia and is unable to perform

the duty as a driver. The true and correct copy of the

reports issued by J.J. Hospital along with the test

conducted by the hospital are annexed herewith and

marked as EXHIBIT "E".

07. The petitioner submits that, after receiving

the said reports, the respondent No.3 had issued

letter dated 11.11.2018 to the petitioner and thereby

informed th t theservice of the petitioner is crune to

 6

be terminated from the date of letter as the petitioner

is unfit for performing his duty with the respondent

No.2 to 4 as a driver. The true and correct copy of the

letter dated 11.08.2018 issued by the respondent

No_.3 to the petitioner is annexed herewith and

marked as EXHIBIT "F".

08. The petitioner submits that, thereafter, the

petitioner filed an application dated 23.08.2018 to

the ;respondent No.3 for an alternative service,

wherein contended that, the petitioner is serving as a

driver with the respondent No.2 to 4 smce

22:.1CL1992 and he has done his service unblemished

and _without any stigma. It is further contended that,

the family of the petitioner is depend upon him for

liveli ood, as such all the responsibility of his family

upori him, as such the petitioner be provided an

·-
alte.rn,.ate service with the respondent No.2 to 4 but in

vam/ The true and correct copy of the application

da,teq. 23.08.2018 made by the petitioner to the
'
. .' 'I'

respq.pdent No.3 is annexed herewith and marked as

.. : •.·;·
EXHIBIT "G".
 7

09. The petitioner submits that, the respondent

No.3 has relied on the circular issued by the

respondent No.2 and thereby declared that the

petitioner is not entitled to get an alternate service

with the respondent No.2 to 4. The petitioner submits

that, the said circular says that the colour blindness

person is not qualified / entitled for an alternative

service in the department. In fact said circular is

ultra virus to the provisions of Section 20 of the

Rightsof Persons with Disability Act, 2016

(hereinafter referred as to "the said Act") as the

petitioner has done the service with the respondent

since 26 years, when petitioner was appointed as a

driver with the respondent No.2 to 4 at that time the

petitioner was qualified for the said post. Hence, the

disability which is occurred to the petitioner during

performing the duty, as such the petitioner is an

entitled to get the alternate service by virtue of the

section 20 of the said Act. The said section says that-

20. Non-discrimination in employment- (1) No

Government establishment shall discriminate

 8

against any person with disability in any matter

relating to employment

Provided that the appropriate Government

may, having regard to the type of work carried

ort in any establishment, by notification and

subject to such conditions, if any, exempt any

establishment from the provisions of this

section.

(2) Every Government establishment shall

provide reasonable accommodation and

appropriate barrier free and conducive

·environment to employees with disability.

(3) No promotion shall be denied to a person

. .· merely on the ground of disability.

(4) No Government establishment shall

' dispense with or reduce in rank, an employee

who acquires a disability during his or her

·' service.

Provided th at 1 if an employee after

i quiring disability is not suitable for the posts
he was holding, shall be shifted to some other
 9

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

0

superannuation, whichever is earlier.

(5) The appropriate Government may frame

• lr l" • "

policies for posting and transfer of employees

with disabilities.

10. The petitioner submits that, the circular

dated 29.07.2016 issued by the respondent No.3 is

an arbitrary, illegal and ultra virus to the section 20

of the said Act as the petitioner has been occurred

disability in performing his duty with the respondent

No.2 to 4, the respondent No.2 has not appreciated

that, the petitioner is suffering from the colour

blindness after rendering the serving of 26 years with

respondent No. 2 to 4, as such the petitioner is not

responsible for the said disease, hence the circular

issued by the respondent No.2 is ultra virus to the

section 20 of the said Act. The true and correct copy

 of the circular dated 29.07.2016 issued by the

respondent No.2 is annexed herewith and marked as

EXHIBIT "H".

11. That, the petitioneJ· submits that, it would

not be out of place to mention here that the

respondent No.2 has issued a circular on 29.09.2017

in which the respondent No.2 has taken the decision

in respect of providing an alternative service to

employees who is suffering from disability to vision

while performing his duty. The true and correct the

copy of circular dated 29.09.2017 is annexed

• , >H

her:e'with and marked as EXHIBIT "I,,.

'

12. That, the petitioner submits that, though

the above representation was made to the respondent

No. , :for alternate service but in vain, therefore the

petitioner again made an application on 28.06.2019

and tequested to the respondent No.2 to provide an

alt rn.ate service in the department. The true

and

correct copy of the application dated 28.06.2019 1s

ann iced herewith and marked as EXHIBIT "J".

./ [

13. : The petitioner submits that, the Article 14

)
15 and 21 of the Constitution of India guarantees the
I
 1

right of life as well as equality of law. The said

circular is an excessive and arbitrary as well as ultra

virus to the section 20 of the said Act as the

petitioner is not responsible for suffering colour

blindness, as such it is needs to be declared the

circular dated 29.07.2016 is an unconstitutional and

against to the Article 14, 15 and 21 of the

Constitution of India.

•• 1111!0:' :i jlJ ·.

14. That, the petitioner submits that, the

respondents have terminated the service of the

petitioner without considering the provisions of the

Rights of Persons with Disability Act, 2016, as such,

the termination of the petitioner is deserves to be

quashed and set aside.

15. That, the petitioner submits that, the

circular dated 29.07.2016 is needs to be quashed

and set aside after holding ·the circular 1s

unconstitutional and against the fundamental rights

05

JE
1
/l fl PA
·•''
_.,.
<
la _)
g a n of India as the respondent1 No.2 to 4 have been

u n protected to other employees up to

a d 18.04 . 20 1 5 , as such the respondent No.2 to 4 have

a 2

n 1

e o

e f

u t

n h

d e

r C

A o

rt n

i s

c t

l i

e t

1 u

4 t

1 i

5 o
 1

done discrimination with the petitioner. Pursuant to

the circular dated 29.07.2016 the respondent No.2 to

4 have been stopped the salary of the petitioner and

refused to provide an alternative service to the

petitioner. As such, the operation of the impugned

circular dated 29.07.2016 kindly be stayed during

the pendency and final disposal of the present writ

petition as the petitioner has strong prima facie case

is made out for quashing and setting aside the above

said circular.

16. That, the petitioner has not filed any other

petiti n before this Hon'ble High Court and before the

.
Apex Court touching to the subJect matter of the
j l:, 1,

present writ petition and this writ petition is coming

fo. r tli e first time in respect of this subject matter of

this writ peti tion .

17 . ., That, the petitioner undertakes to supply

English translation of Marathi documents, if

nece '.sary.

18. , That, the petitioner has not received caveat

notice from the respondents so far.

 1

,ig
19. That, the petitioner craves leave to add

amend, alter, delete or modified any of the

contentions or any of the grounds raised 1n

paragraphs of this writ petition, if necessary.

20. THE PETITIONER THEREFORE PRAYS THAT:

A] This Writ Petition may kindly be allowed.

B] Rule may kindly be made absolute by

allowing this Writ Petition, thereby

declaration that, the ··circu lar dated

29.07.2016 issued by the respondent No.2

is unconstitutional and against to the

Article 14, 15 and 21 of the Constitution of

India .

CJ Rule may kindly be made absolute by

allowing this Writ petition, thereby

declaration that, the circular dated

29.07.2016 issued by the respondent No.2

is an ultra virus to the section 20 of the

Rights of Persons with Disabilities Act,

2016.

D] Rule may kindly be made absolute by

allowing this Writ Petition, the letter dated

11.08.2018 issued by the respondent No.4

 1

to the petitioner may kindly be quashed

and set-aside.

E] Rule may kindly be made absolute by

allowing this Writ Petition, thereby

directions to the respondents to provide the

alternative service to the petitioner by

virtue of the section 20 of the Rights of

Persons with Disabilities Act, 2016.

F] Rule may kindly be made absolute by

allowing this Writ Petition, thereby direction

to the respondents to pay the back-wages

to the petitioner as the decision taken by

the respondent No.2 to 4 is illegal and

contrary to the provisions of the law.

G] Pending the hearing and final disposal of

the present Writ Petition the letter dated

11.08.2018 issued by the respondent No.4

to the petitioner may kindly be stayed.

H ] Pending the hearing and final disposal of

.
the present Writ Petition, the respondents

may kindly be directed to provide

alternative service to the petitioner.

 1

I] Pending the hearing and final disposal of

the present Writ Petition, the execution,

implementation and operation of the circular

dated 29.07.2016 issued by the respondent

No.2 may kindly be stayed.

J] Pending the hearing and final disposal of

the present Writ Petition, respondent No. 2

to 4 kindly be directed to provide an

alternative service to· .....,the petitioner

forthwith.

K] Ad-interim relief in terms of prayer clause

"G" ,"H" ,"I,, & ''J" may kindly be granted.

L) Any other suitable and equitable relief

deems fit in the interest of justice may
kindly be granted in favour of the
petitioner.

AND FOR THIS ACT OF KINDNESS AND

JUSTICE THE PETITIONER AS ON DUTY BOUND
SHALL EVER PRAY.

Date :- /08/2018 ( K. )
Place:- Bombay. Advocate for Petitioner
 1

VERIFICATION
I, Daga S/o Bhaurao Bhadane, Age:

56 years, Occu.: Nil, R/o. Morane, Post- Ambason,

Tal. :Satana, Dist. Nashik, do hereby state on

solemn affirmation that the contents of this Writ

Petition from Para No. 01 to 20 and prayer Clause (A)

to (L) are read over and explained to me in Marathi

and the same are true and correct to the best of my

knowledge.
..J

Hence verified at Aurangabad on this .! ·

day of August, 2019.

Identified and Explained by : Deponent

(Daga S/o Bhaurao Bhadane)

.
• .,. K RMALE)
i , dvocate, High Court
.,.

I ,.
.,' AFFIDAVIT

I
I
I
I
I