K K VENUGOPAL Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner joined service in the Department of Mining and Geology as driver in the year 1998. While so, he started suffering from hearing impairment and this progressed to an extent where he sustained a disability. Ext. P1 medical certificate shows that the Medical Board assessed his disability at 40%. In the circumstances, the petitioner became a disabled person as defined in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as 'the Act').

(2.) Petitioner, finding it difficult to continue as a driver, applied for a category change. Though it was initially declined, the petitioner again moved the Government vide Ext. P2 requesting for a posting to a clerical post having the same scale of pay. Apparently, by Ext. P3 reply, the Director for Mining and Geology was directed to report what is the equivalent post in which the petitioner can be accommodated. By Ext. P4 the Director reported that if a category change is permitted, the petitioner could be accommodated as a Lower Division Clerk and that there is actually a vacancy in the head office at Thiruvananthapuram. By Ext. P5 the Government informed the Director that though the scales of pay of the driver and that of the Lower Division Clerk are one and the same, the two posts cannot be considered as having the same rank and that the petitioner can only be accommodated as a peon in circumstances where he has been assessed as a disabled person and therefore unable to continue his functions as a driver. A reconsideration sought for by the petitioner as per Ext. P7 was also rejected under Ext. P8 taking the same stand. Exts. P5 and P8 have been challenged in the writ petition.

(3.) The respondents have filed a counter affidavit, inter alia, contending that the basic qualifications, duties and responsibilities of the Lower Division Clerk is different from that of a driver and the petitioner is not qualified to be appointed as Lower Division Clerk. Therefore, he cannot be granted a category change to the post of Lower Division Clerk. It is also pointed out in the counter affidavit that even if the petitioner is posted as a peon on category change, his pay would be protected in terms of S.47 of the Act as such.