Andhra Pradesh HC- Disability acquired during employment makes employee entitled to continued alternate employment; Also entitled to backwages & arrears for interregnum period as Corportation failed to dischare its statutory duty

Court: Andhra Pradesh High Court, India

Bench: Hon'ble Sri Justice Ravi Nath Tilhari

Case Number: Writ Petition No. 5486 of 2011

Case Title: Sri Ch.S. Rajeswara Rao Vs. Govt., of A.P. rep. by Principal Secretary, Transports Department and others.

Date of Judgement: 14 September 2022

Judgements cited/reffered: 

(a) Bhagwan Dass and another vs. Punjab State Electricity Board [2008(1) SCC (L&S) 242]

(b) K. Moses vs. A.P.S.R.T.C [W.P.No.3031 of 2008 decided on 01.11.2010]

(c) Laxmi Kant Sharma vs. State of U.P and 5 others.  [2018 LawSuit (All) 1355]

(d) Andhra Pradesh State Road Transport Corporation rep., by its Managing Director and others vs. B.S. Reddy

(e) Kunal Singh Vs. Union of India (SC judgement 13 Feb 2003 in Appeal (civil) 1789 of 2000)

Brief

The petitioner was working as a Conductor in the Corporation. He was appointed as a casual labour in April, 1984 and his services were regularized in the year 1987. While he was on duty, he met in an accident and undergone a surgery of spinal cord in which his two discs were removed. On the ground of medical unfitness he was retired from the service on 21.07.2001. 

Challenging the order dated 21.07.2001 the petitioner filed Case No.165 of 2005 before the State Commmissioner for Persons with Disabilities. The Commissioner vide order dated 25.09.2006 allowed the said case, setting aside the impugned proceedings dated 21.07.2001 and directed the Corporation to consider the petitioner’s claim de-novo in the light of Section 47 of the Act, 1995. The petitioner was, therefore continued as conductor and his services were utilized at Bus Pass Station, Governorpet-I Depot vide orders dated 15.02.2007 and 21.02.2007. 

The present dispute is for payment of salary from 21.07.2001 upto 21.02.2007 during which period the petitioner remained out of service on account of his retirement imposed by the Corporation on the ground of medical unfitness. 

The petitioner submitted that in view of the statutory provisions of Section 47 of the Act, 1995, the petitioner ought to have been offered alternative employment to some other post with the same pay scale and service benefits. The petitioner is entitled to receive the salary for the interregnum period.

The Bench highlighting the benevolent provisons of section 47 said, "Section 47(1) is clear in terms that "no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service. The proviso to Section 47(1) in fact confers a right on an employee, who acquired disability and was declared unsuitable for the post he was holding, for being shifted to some other post with the same pay scale and service benefits. By that proviso, not only the alternate employment but also the pay scale and the service benefits are also protected."

The bench further said, "so far as the payment of arrears of salary for the period in question is concerned, the petitioner was not at fault for not discharging the duties during the interregnum period for which the corporation was responsible as it failed to discharge its statutory duty. The petitioner cannot be deprived of the salary for the period claimed and cannot be made to suffer for the fault of the corporation. Under the Act, it was the statutory duty of the Corporation not to throw the petitioner out of service but to provide the alternative employment to some other post with the same pay scale and service benefits and if there was no such post available the supernumerary posts should have been created.

Citing the case of State of U.P Vs. Dayand Chakravary and others [(2013) 7 SCC 595], the Hon’ble Apex Court held that the principle of ‘no work no pay’ shall not be applicable to such employee who is prevented by the employer from performing his duties as the employee cannot be blamed for having not worked.

Allowing the writ petition, the bench directed the respondent Corporation to pay full salary to the petitioner for the period w.e.f  21.01.2001 upto 21.02.2007 after calculating the same as per the pay scale applicable to the post of Conductor for the relevant period. It further directed that the arrears shall be paid within a period of two months from the date of production of copy of this judgment before the respondent-Corporation along with simple interest thereon @ 6% p.a w.e.f 21.02.2007 upto the date of payment. If consequent upon the addition of the increments as aforesaid for the aforesaid period, some more arrears of salary become due to the petitioner for subsequent period also i.e after 21.02.2007, the same shall also be paid to the petitioner after adjusting the amount of salary paid to the petitioner, within the same period as aforesaid.

Read the judgement embedded below:

Delhi HC clears the way for a disabled doctor to appear in the PG medical counselling

Court: Delhi High Court

Bench: Mr. Justice Sanjeev Narula

Case No.:    W.P.(C) 12653/2022

Case Title:  Laxmi Vs. Union of India & Ors

Date of Order: 14.09.2022

Next Date of Hearing: 22 Nov 2022

Case Brief:

Ms. Laxmi, a disabled MBBS student who was declared ineligible to pursue a course at the postgraduate level has been given the clearance by Delhi High Court to appear in the PG medical counselling.

The petitioner, who completed her MBBS course from Baba Raghav Das Medical College, Gorakhpur has polio in her lower left limb.  But, the Safdarjung Hospital declared her 100% disabled and rejected her to get a clearance certificate. For NEET PG counselling after completion of MBBS, PwD students need a certificate from one of the specific centres.

Laxmi went to the Centre Govt-run Safdarjung Hospital onAugust 24, 2022 to appear for the disability test. She uses an orthotic caliper, owing the polio. However,  the examiners asked her to remove it and walk, which she couldn't do. thus she was declared 100% disabled. As per the existing rule, a PwD candidate with 40-80% disability is allowed for PG courses.

She thus filed a petition in the Delhi High Court. The single bench presided  by Hon'ble justice Sanjeev Narula,  directed AIIMS to constitute a board of experts to assess the disability of the MBBS doctor. A team of three doctors was constituted to examine her who opined as under:

"Candidate Ms. Laxmi was assessed without and with lower limb orthosis. She was found to have improved ambulation and stability with Knee Ankle Foot Orthosis (KAFO) with compensation for shortening in left lower limb. With orthosis the disability becomes less than 80% (Eighty Percent). She would be able to perform the functions expected from a post graduate specialist doctor with use of an appropriate and well fitting orthosis."

Similar ableism was on display in a recent case decided by the Allhabad HC, where a candidate who used tri-cycle was forced to ride a bicycle which was the essential qualification for the post. The candidate had expressed that he could ride a tricycle with equal efficiency as a cycle, however, the albleist Principal did not even consider his candidature. Though no major relief came his way due to a prolonged litigation and lapsed time, the court however, decided that it was clearly a case of violation of human dignity and awarded a compensation of Rs. 5 lakh to the affected petitioner.

In the instant case, since some of the reliefs sought in the petition survived and required consideration, the court isssued notices to respondents with next date of hearing as 22 Nov 2022. The matter was successfully argued by Adv Gaurav Bansal, for the petitioner.

Earlier the Doctors with Disabilities : Agents of Change, a group of Indians Health Professionals with Disabilities shared on its facebook group  on 03 Sep 2022 the detailed timeline of challenges faced by Dr. Laxmi due to #AbleismInMedEd and revelations from the responses to the RTI filed by Dr. Satendra Singh, a doctor with disabilities himself at link here reproduced below: 

"An MBBS lady doctor with 45% disability in the left lower limb according to Govt of India's UDID (and another disability certificate from prestigious KGMU) was declared 100% disabled by Safdarjung Hospital's medical board for NEET PG headed by Dr Suman Badhal (Prof PMR), Dr Ajay Gupta (Prof PMR), Dr Arun Kumar Pandey (Astt Prof, Ortho) and thus crushed her dream to do specialization. There may be some doubt about assigning a percentage between 40-50 or 30-40, but declaring someone 100% disabled with only polio in one leg is unjustified. 

The VMMC & Safdarjung Hospital medical boards have been dubbed "harassment centres" by candidates with disabilities, and there is evidence that this hospital is fond of declaring candidates "100% disabled". It is highly unlikely to get a 100% disability certificate until and unless both limbs are involved.

2020: A candidate from Meerut with a 50% disability because of polio (no braces) was declared 100% by this board & denied admission. Poor person could not file case.

2019: A candidate from Bijnor with same 50% disability because of polio was also declared 100% & rejected. He studied again, cleared NEET UG, went to a different centre & now doing MBBS third year.

2019: A MBBS doc on crutches (50% disability) working as a JR in the PMR Dept of RML Hospital was declared ineligible in NEET PG after declaring > 90% at Safdarjung. He is now doing MD Dermatology in Rajasthan.

2019: Another lady doctor with MBBS was denied admission. "I did everything they asked for, including sitting on the floor and crossing my legs, despite delivering a baby two weeks ago". Dejected, she went to another centre, got admission and finished MD Pediatrics successfully last week and awarded by State Govt.

Let's see the competence of these "experts". Dr Satendra Singh filed an RTI asking what guidelines they follow. My RTI Question No. 7: Kindly provide the details of all the tests done by doctors to assess NEET candidates with locomotor disabilities. Which guidelines are followed by them? Please provide a copy of that as well. The response by PMR Faculty as CPIO: "Please refer to standard text books of Medicine on guidelines." The gazette guidelines on assessment exist but Prof Gupta follows some ‘textbook of medicine’ and he is a constant in all of these rejections. Moreover, this competent board is not even aware of how to issue this certificate. After Dr Satendra Singh's PIL, the National Medical Commission issued an addendum that those with more than 80% disability may be considered eligible on functional competency with the help of assistive devices. There is no mention of that in the issued certificate. This premier hospital does not even have an Equal Opportunity Policy mandated under the law (See RTI response).

For how long will such unprofessional and unethical practices go unchallenged? The Delhi High Court has already issued directions for re-assessment at AIIMS, Delhi for this woman doctor, but what about many others who have been constantly rejected without rationale after successfully doing MBBS and who can not afford to go to court? The objective of these screening centers should be to assist candidates with disabilities and provide reasonable accommodations, as being done by the General Medical Council of the UK. However, they choose to harass their own fellow doctors."

Read the order embedded below: