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:

Allahabad HC stays the recruitments to Teaching Posts in Dr. Shakuntala Mishra National Rehabilitation University for non compliance to reservation provisons of RPWD Act

Court : Allahabad High Court, Lucknow Bench, UP, India

Bench: Hon'ble Devendra Kumar Upadhyaya, J. & Hon'ble Shi Prakash Singh, J.

Case No. :  WPIL (L) No. 185 of 2022 (Public Interest Litigation)

Case Title: All India Confederation Of The Blind Delhi & Another  Versus   - State Of U.P. Thru Its Addl. Chief Secy. Divyangjan Sashaktikaran Vibhag, Lko And Dr. Shakuntala Mishra National Rehabilitation University 

Date of Order: 08 Sep 2022

Next Date of Hearing: 09 Nov 2022.

Brief Case:

The rights of Persons with Disabilities often fall in to the cracks that exist between words and deeds in policies and actions of various statutory bodies. A recent case in point is Dr. Shakuntala Mishra National Rehabilitation University in Lucknow, U.P. which according to its own website is "The first University of its kind, which also provides accessible and quality higher education to challenged students, in a completely barrier-free environment."

However, early during this year it was observed by the petitioner organisation All India Confederation of the Blind that the noble statements  of the university were mere words as in its advertisement for 107 vacancies, not a single vacancy was reserved for Persons with Disabilities and not just that- the University even one appointment against the teaching posts. This is in a University which has its mandate to primarily "serve the differently-abled segment". 

The petitioners alleged that the university issued advertisements in 2020- 2021 for appointment on 16 posts of professor, 27 of associate professor and 64 of assistant professor in various subjects which summed up to 107 vacancies wherein but it failed to reserve four per cent vacancies for persons with benchmark disabilities of which 1% vacancies were not reserved for blind persons.

After several hearings, finally on 8th September, 2022, the Lucknow bench of Allahabad High Court expressed serious concern over Dr Shakuntala Mishra National Rehabilitation University's failure to provide adequate quota to the disabled with regard to about 107 teaching posts advertised in 2020- 2021 . The university has assured the bench that till the entire matter was revisited and final decision was taken in respect of reservation of vacancies in terms of the provisions contained in Rights of Persons with Disabilities Act, 2016 and the relevant government orders, no selection pursuant to the advertisement in question would take place. 

At this, the bench said, "We expect and hope that the university authorities shall pay attention and consider the entire matter not only in terms of the legal provisions, but by observing some empathy for the reason that the university itself has been created and formed for larger benefits of differently abled persons." 

A bench of Justice DK Upadhyay and Justice Shree Prakash Singh passed the order on a PIL moved by All India Confederation of the Blind, Delhi through its secretary Gauri Sen and National Association of Visually Handicap. The bench on a previous hearing had expressed concern that no reservation was provided against the advertised posts though the university was primarily established for benefit and rehabilitation of differently abled persons

The bench also said that an appointment made by the university for the post of professor in Hindi department would be subject to final decision of the instant petition. The bench also directed the registrar of the university to have an audience of the petitioner's counsel and an intervener on the issue.

Matter is now listed on 09 Nov 2022. 

Read the Order dated 08 Sep 2022 embedded below:

Allahabad HC directs compensation of Rs. 5 lakhs for violation of human dignity of a person with disability during recruitment exercise

Court: Allahabd High Court, UP, India 

Bench: Hon'ble Saumitra Dayal Singh,J.

Case No. : Writ - A No. - 18302 of 2021

Case title - Pradeep Kumar Gupta v. State Of U.P. Through Secretary ( Higher Education) And 4 Others 

Date of Order: 31.08.2022

Case Brief 

The petitioner who is 56-year-old and a person with disability having 50% locomotor disability, had applied for the post of a Library Peon at a Government Degree College in Saharanpur. The essential qualifications for the said post prescribed were Class V pass and ability to ride cycle. 

He was called for an interview, however, in the interview, the petitioner was not evaluated and he was purportedly asked to leave as he could not ride a bicycle. The principal forced the petitioner to ride a bicycle though he expressed he could ride a tricycle with equal efficiency. Subsequently, a higher educational qualification (for the post of Library Peon) of High School was insisted and since the petitioner did not hold that qualification, he was excluded. 

The petitioner thus moved to the High Court claiming the violation of his rights and alleging humiliation caused to him, mainly by the then Principal of the Government Degree College, who interviewed him. He also alleged hostile discrimination having been practised by the State respondents and a complete violation of his special rights under the Rights of Persons with Disabilities Act, 1995. 

He also argued that only to deprive him of an opportunity of employment, the selection process was stalled and higher educational qualification (than that possessed by the petitioner), was pressed so that the petitioner could be excluded from the zone of consideration. 

The petitioner also had escalated the issue and lodged complaints, as a result, the Regional Employment Exchange (Divyangjan), Meerut Division instituted an enquiry into the allegations levelled by the petitioner. It submitted report dated 23.11.2007 confirming the allegations as true.

Thereafter the court/office of State Commissioner (Divyangjan), exercising powers vested under Section 82 of the Old Act directed the District Magistrate, Saharanpur and the Additional Commissioner (Divyangjan), Saharanpur, to institute a magisterial enquiry into the complaint made by the petitioner. Admittedly, the magisterial enquiry was conducted and its report submitted on 09.09.2019. In that, the Magistrate found the fact allegation made by the petitioner to be correct.

Also, upon receipt of direction issued by the court/office of State Commissioner (Divyangjan) dated 23.05.2019, the District Magistrate, Saharanpur, acting as the Additional Commissioner (Divyangjan), Saharanpur, made his own enquiry and passed an order dated 30.11.2019, confirming the allegations of the petitioner as true and recommending action agaisnt respondents.

At that stage and in view of the order dated 30.11.2019 passed by District Magistrate, Saharanpur, the petitioner withdrew his earlier writ petition No. 17917 of 2007, in belief of appointment thus assured to him.

However, the above order was assailed by the then Principal of the Government Degree College, Deoband, Saharanpur, in Writ – A No. 1975 of 2020 (Ashok Kumar Sharma Vs. State of U.P. & 3 Ors.). It transpires, in the course of those proceedings, office of the District Magistrate/Additional Commissioner (Divyangjan), Saharanpur, vide further order dated 17.02.2020 withdrew in entirety its earlier order dated 30.11.2019.

Thus the petitioner again approached this court with the present petiton at a delayed stage.

Court Order

The Court, affirming the importance of human dignity, the granted a sum of Rs. 5 Lakh as compensation to the petitioner. While partly alowing the petition of the petitioner Pradeep Kumar Gupta, the court remarked, "The amount of compensation has been awarded to let the petitioner know, the State may take time to hear & understand its citizen and his plight but, it is neither deaf nor heartless as may ever remain indifferent, forcing him to drag his feet, almost literally, to this Court to seek justice. The citizen works at the heart of the giant being the State is. Unless the heart beats freely, the being cannot thrive." 

The Court expressed that the state was liable to compensate its 'special citizen' whose dignity was violated as he was humiliated at the instance of the State authorities, for no fault of his. The Court also emphasized that the State and its functionaries had failed to protect him, and the act of humiliation was against the mandate of the Constitution. 

"...the State and its functionaries have not only failed a special citizen but also violated his fundamental right to life and liberty - for what worth is human existence if it is denuded of dignity and respect deserving its cherished existence. Deprived of dignity, liberty is a sea-shell washed to the shore, dead and of ornate value for others but worthless to the being that used to live within it," the Court further observed.

The Court also added that the respondents are generally at fault in not providing for identification and reservation of adequate posts for persons with a locomotor disability at Government Degree College at Deoband, Saharanpur.  The Court called it "most disturbing" that instead of apprising him of the fact regarding non-availability of reservation, he was unfairly asked to ride a bicycle which he obviously could not. 

In any case, the Court opined, in absence of a specification of 'bicycle' in the advertisement, the petitioner should have been allowed to ride a 'tricycle' which also qualifies as a cycle. In other words, the Court clarified, that if otherwise eligible, the petitioner should have been allowed to compete as a General Category candidate. 

The court directed the State  to pay the petitioner, a lump-sum compensation assessed at Rs. 5,00,000/-  directly into his Savings Bank Account within a period of three months.

Read the order embedded below: 

Madras HC dismissed the plea of TN Govt. seeking clarification of the order that directed them to purchase only accessible low floor buses.

Court:             Madras High Court, India

Case Title:     The Metropolitan Transport Corporation (Chennai) Ltd. Vs. Vaishnavi Jayakumar & Ors.

Case No. :      WMP/83132/2022 in WP/5957/2021

Filed on :        03-08-2022  

Reiterating its earlier order, the Madras High Court refused to alter or clarify its earlier order dated 05 Jul 2022 on allowing only low floor disabled friendly buses in the state.  The earlier order had directed the state transport corporations to procure 2,213 buses in strict compliance with the rules and regulations of Rights of Persons with Disabilities (PWD) Act and that cannot be altered, said the  the first bench of Chief Justice Munishwar Nath Bhandari and Justice N Mala.

“The order was passed as per the directions of the Supreme Court. If you (the corporation) want to alter it you have to approach the Supreme Court,”

While passing the last order, the the bench had lifted the ban on procuring new public transport buses on condition that the corporation shall comply with the rules and regulations of the RPWD Act. Subsequently, alleging that the condition to comply with the rules caused an impediment, the corporation moved a memo to clarify the order.

The corporation sought to submit that operating the low-floor disabled-friendly buses was difficult, as it caused damage to buses. But the court refused to accept the contention, and thus the plea was permitted to be withdrwan and thus the Court dismissed the same as withdrawn. 

The attempt of the corporation only shows that instead of addressing the accessibility of roads and buses, it sought to find ways not to implemnet the law of the land citing frivolous excuses for a long time. In earlier matters filed before the Madras HC, the court had clearly said that while it accepted that it may be difficult and costly to make the existing buses accessible, henceeforth all new buses purchased to replenish the public trdansport fleet must be accessible complying with the law and the State happily agreed to it. However, it started putting forth flimsy excuses and did not take any action on improving the road infrastructure, bus boarding platforms and road conditions etc.

Here is the copy of the Affidavit on behalf of Metropolitan Transport Corporation (Chennai) Ltd. embedded below: