Mr. M.L. Chauhan, Member (J):
1. Applicant has filed this OA, thereby praying for the following reliefs:
(a) quash and set-aside the impugned Memo/Order No.Narela/PFC(Dr.)/Retirement/12/33 dated 05.01.2012 issued by the respondent no.2, thereby the applicant may kindly be permitted to be retained in the department as a driver with all consequential benefits of pay, seniority, increment, back wages etc.; and
(b) Quash and set-aside the impugned Report dated 29,12.2011 given by respondent no.3.
(c) Pass any other order(s), in favour of the applicant which this Honble Tribunal may deems fit and proper under the facts and circumstances of case as well as in the interest of justice.
2. Briefly stated, facts of the case are that the applicant, joined the DTC on the post of Driver in the year 1988. The case projected by the applicant is that he had sustained injuries in the toe of his left foot, for which he underwent treatment in Safdarjung hospital and AIIMS and recovered from his injury and has been performing his duties of the driver. It is further pleaded that the applicant was directed to appear before Medical Board for medical examination for extension in service at BBM Depot Dispensary on 22.12.2011, as the applicant was going to attain the age of 55 years on 14.01.2012. Applicant was examined by the Doctor of Dispensary of respondent No.3 but was declared unfit on 29.12.2011. On the basis of the said medical report applicant was retired from service w.e.f. 31.01.2012. It is the case of the applicant that thereafter on 17.01.2012 the applicant was again examined by the Medical Board of Ram Tula Ram Memorial Hospital and after examination the applicant was declared fit for driving duty. It is further stated that after receipt of the report from the Medical Board of Rao Tula Ram Memorial Hospital, Delhi the applicant submitted a detailed representation dated 18.01.2012 to respondent No.1, thereby requesting for setting aside/canceling the impugned memo dated 05.01.2012 and allow him to join duty. However, vide letter dated 20.01.2012 received from respondent No.2 applicant was directed to appear before respondent No.3 on 23.01.2012 for further re-examination but he was not examined by the Doctor. It is on the basis of these facts that the applicant has filed this OA.
3. Notice of the Application was given to the respondents, who have filed their reply, wherein the facts, as stated above, have not been disputed. It is stated that since the applicant was going to attain the age of superannuation, i.e., 55 years on 14.01.2012 he was directed vide letter dated 12.12.2011 to undergo medical examination and he was declared unfit for first extension of service for the post of driver by the DTC Medical Board after his medical examination on 22.12.2011. It was found Posh Traumatic Deformity left big toe Osteoporosis meta sic phalanges. Copy of the medical report is filed as Annexure A-2. Thus, according to the respondents in the light of the office order No.99 dated 04.06.1963, as interpreted by the Delhi High Court, applicant is not entitled to any relief being declared unfit by the DTC Medical Board.
4. Regarding non-conducting of second medical examination pursuant to letter dated 20.01.2012, respondents have stated that the applicant could not be examined on 23.01.2012 when he was asked to appear before the Medical Board for his medical re-examination, as his entire case file was summoned along with the medical report. It is stated that thereafter the applicant filed the OA before this Tribunal, seeking stay of the order dated 05.01.2012. Respondents have also placed reliance on certain judgments of the Delhi High Court rendered in LPA NO.1214/2007 DTC v. Dharam Pal, decided on 09.01.2009 and other connected matters and also the order of this Tribunal dated 06.01.2002 in OA-1897/2009 Ved Ram Sharma v. DTC & Anr. and another decision of this Tribunal in OA No.2771/2011 Rattan Singh v. DTC with OA No.2433/2011 Jag Phool Singh v. DTC, decided on 02.12.2011 to show that the applicant is not entitled to any relief.
5. When the matter was listed on 24.05.2012 this Tribunal passed the following order:
Vide order dated 06.03.2012 passed by this Tribunal, the respondents were directed to produce the Medical Board's report dated 23.01.2012 in terms of letter dated 20.01.2012 by way of an affidavit within two weeks. Thereafter, respondents have filed their additional affidavit stating that by the relevant time the applicant had already become 55 years of age and there was no point in sending him for another medical examination. We do not agree with the contention of the respondent-DTC. Only the Medical Authority could comment whether the employee was medically fit or unfit for the post of Driver and the respondent DTC must have sent the file as desired by the Medical Board, BBM Dispensary (Incharge) vide its letter dated 20.01.2012. We also make it clear that the superannuation of the applicant during the pendency of this OA will not come in his way for consideration for reemployment.
Let the affidavit as stated above, be filed in this regard within two weeks. List for further consideration on 04.07.2012.
6. Pursuant to the direction given by this Tribunal on 24.05.2012 applicant was again re-examined by the Medical Board and the applicant has been declared unfit for extension of service under clause (h) of physical medical standards. Respondents have placed on record copy of the medical report dated 28.05.2012 as Annexure-R8 along with the additional affidavit.
7. We have heard learned counsel of the parties and gone through the material placed on record. Learned counsel of applicant has argued that since the applicant had sustained injuries in the tow of his left foot in the year 1990 and after his treatment he was found fit to drive the vehicle, thus according to the learned counsel of the applicant such deformity should not have formed basis for further extension of the applicant beyond the age of 55 years on year to year basis in terms of Regulation No.10 of DRTA (Conditions of Appointment and Services) Regulations, 1952. On the other hand, learned counsel of respondents has placed reliance upon the judgment of the coordinate Bench of this Tribunal dated 02.12.2011 rendered in OA No.2771/2011 and OA No.2443/2011 (supra) where the similar issue was involved.8. At this stage, it will be useful to quote para-9 of the judgment, which thus reads:
8. 'However, the case of the applicant in this case is quite different. He met with an accident in the year 1985. Finally, his left leg became shorter than the right leg. The Medical Board did not find it a serious impediment at that time for him to continue to work as a Driver. He was, therefore, given the duty of Driver in 1987 and he worked upto 30.4.2011, i.e. the date of his superannuation at the age of 55 years. The Medical Board on re-examination found him unfit not only for shortening of his leg but for other infirmities such as post-accidental disorders, limping gait, FUC Bilaterial Ferry Shaft, Tibia etc. The condition of health of a person who met with an accident and declared fit for performing duty of Driver in the year 1985 may not remain the same after 25 years. We, therefore, hesitate to direct the respondents to appoint the applicant as Driver against the Medical advice.'
9. The ratio as laid down by the Coordinate Bench in the
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case of Rattan Singh (supra), relevant portion of which has been reproduced above, is squarely applicable to the present case. We are of the view that the applicant is not entitled to any relief simply because he has been allowed to perform the duty of driver till the age of superannuation cannot form basis to give reemployment after the age of superannuation, as further extension beyond the age of superannuation cannot be claimed as a matter of right and the condition of a person who met with an accident and declared fit for performing duty of driver as far as in the year 1990 may not remain the same even after a lapse of 15 years. In any case the ratio, as laid down by the Coordinate Bench (supra) is binding on us. Accordingly, OA is found bereft of merit, which is accordingly dismissed, without any order as to costs.