Laws against Discrimination against the Disabled that apply to the disabled also apply to their carers

Dear Friends,

There is some good legal interpretation happening here. The European Union's Highest Court has ruled that Employers can be found guilty of discriminating against the parent of a disabled child under the EU equality laws.

I feel this indicates a paradigm shift in the interpretation of Equality laws and shows higher sensitivity of the Court to relate the stress of the carer as related to disability.

The European Court of Justice says laws against the discrimination of the disabled also apply to their carers. It says in a recommendation issued Thursday for a British court case that a London law firm was wrong to refuse legal secretary Sharon Coleman her previous job after she gave birth to a son with breathing problems.

Coleman claims her employers said she was lazy when she asked for time off to care for her child. She says other workers with non-disabled children received better treatment and more flexible working hours.

The news could be read from source at: http://www.iht.com/articles/ap/2008/07/17/europe/EU-EU-Work-Equality.php

Madras HC | WP No. 23379 of 2007 | LK Venkat & Anr. Vs. Min. of Civil Aviation & Others | 30 June 2008

Dear Friends, 

We often see the impact of Cases indirectly. Of late we have been seeing some enormous amount of activity in the DGCA and Ministry of Civil Aviation and their engaging very constructively with the Disability Sector in bringing about a Civil Aviation Requirement on carriage of People with Disability. 

In this regard, I refer to a case filed by Mr. L.K. Venkat & Rajiv Rajan against the Ministry of Civil Aviation, Air Sahara and Jet Airways etc. on the issue of lack of provisions for dignified flying for the disabled. The ministry drew flake for some time but this case surely was one of the factor in pushing the CAR guidelines more quickly from the tables of Ministry of Civil Aviation.   Finaly the HC hs delivered its judgement on Rajiv Rajan's Case against Min. of Civil Aviation. 

I am appending the judgement (courtesy Disability Legislation Unit-South) for your information and comments. 

In the High Court of Judicature at Madras 

Dated: 30-06-08 

Bench/ Coram: Mr. Justice P.K.MISRA And  Mr. Justice M.SATHYANARAYANAN 

 

Writ Petition No. 23379 of 2007 

IN RE:

 1.    Mr. L.K.Venkat 

 2.    Rajiv Rajan                                             ..Petitioners 

  

Versus 

1. The Ministry of Civil Aviation Chennai Airport, Mennambakkam, Chennai. 
2. The Secretary to Government Ministry of Civil Aviation, Rajiv Gandhi Bhavan, Safdarjung Airport, New Delhi. 
3. Air Sahara Airlines, Kamarajar Domestic Terminal, No.1, Link Building, Trisulam, Meenambakkam, Chennai-600 022 
4. Chief Executive Air Sahara (now known as Jet Lite) S.M.Centre, Andheri Koria Road Andheri (East), Mumbai-400 059 
5. Chief Executive Officer, Jet Airways (India) Ltd, S.M.Centrem Andheri Koria Road Andheri (East), Mumbai-400 059* 
6. Director General of Civil Aviation Opposite to safdurjung Airport New Delhi 
7. Chief Commissioner for Disablilities, Govt. of India, Sarojini House, No.6, Bhagawandoss Road, New Delhi-110 001 

(Cause title amended as per order dt.13.2.2008 in M.P.No.1 of 2007 in w.p.23379 of 2007) 

                                                                            …Respondents 

Writ Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Mandamus as stated therein. 

For Petitioners ….. Mr. P.B.Suresh Babu for Petitioners. 

For Respondents …. Mr. P.Wilson, Asst. Solicitor General for R1, R2,R6 & R7. 

M/S Guptha & Ravi for R3 to R5. 

 (Order of the Court was made by M.SATHYANARAYANAN, J) 

 The writ petition is filed in public interest for the issuance of writ of mandamus directing the respondents 1 to 3 to strictly implement the provisions of the persons with Disabilities (Equal Opportunities, Protection and Full Participation) Act, 1995 (in short “the Act”).  Thereafter M.P.No1 of 2007 was filed to implead the second petitioner and respondents 4 to 7, it was ordered on 13.2.2008 and accordingly, second petitioner and respondents 4 to 7 came to be impleaded as parties to this writ petition. 

 2. The first petitioner is a physically challenged person and he is a Postgraduate degree holder in Master of Arts and also did graduation in Law. The petitioner is doing social services in the name of Makkal Thalaivar Iyya Moopanar Peravai by conducting Blood Donation Camps, Eye Camps, Aids Awareness Programmes and other social services especially in rural areas of all over Tamil Nadu. 

 3. The first petitioner through newspaper reports came to know that the third respondent refused to board to board the second petitioner who is similarly affected buy a Polio Syndrome like the petitioner, on account of the fact that he is a physically challenged person. The second petitioner approached the third respondent to find out the reason why he was not allowed to board the aircraft and he was informed that unless he obtained fitness certificate from a doctor and accompanied by a healthy person to assist him during air travel, he will not be allowed to board aircraft. 

 4. According to the petitioner, the attitude of the third respondent is in violation of Article 14 of the Constitution of India and also clear contravention to the above said Act. The petitioner also sent a notice through his lawyer on 23.06.2007 calling upon the respondents to implement the provisions of the above said Act and he was not favoured with any response. Therefore, the petitioner has filed this writ petition. 

 5. Mr. P.B.Suresh Babu, learned counsel appearing for the petitioners had made his submissions based on the averments made in the affidavit filed in support of the writ petition. The learned counsel for the petitioners also filed a memorandum in reply to the counter affidavit filed by the respondents 1 to 4. It is submitted by the learned counsel appearing for the petitioners that there were similar incidents pertaining to aircraft Sahara and Jet Airways and complaints have been lodged with Chief Commissioner, Disabilities and the said complaints are pending adjudication. It is further submitted by the learned counsel for the petitioner that persons with disabilities are facing discrimination and degrading treatment wherever they go., The rights of the disabled persons was first declared in U.N. Declaration on the rights of persons with disabilities in the plenary meeting held on 19.12.1975 and the said declaration is yet to be given full effect. 

 6. It is also submitted by the learned counsel appearing for the petitioner that the provisions of the Aircraft Act 1934 and the Indian Aircraft Rules 1937 have to be reviewed in the light of the Constitution of India and the various commitments with the Government of India as made in the International Forums. In spite of the existing law, the facts would now disclose that the degrading treatment shown by the airliners are give recurrent and had been in different forms. Therefore, the writ petitioner has prayed for a declaration that the persons with disabilities constitute a separate class by themselves distinct from the medical ill or temporarily disabled persons and for a direction to review the Legislation and Rules relating to Civil Aviation and the lines of this understandings and also for the other consequential reliefs. 

 7. The respondents 1 and 2 had filed counter affidavit. It is stated in the counter that as per Rule 24 A of Aircraft Rules 1937, the persons suffering from any mental disorder are prevented to be carried on board of the aircraft and it is subject to the provision which is as follows:- “(a) has not taken or used any alcoholic drink or preparation within 12 hours of the commencement of the flight; (b) is kept under proper sedative; if in a state of excitement, during the flight and stops enroute; and (c) is accompanied by an attendant, provided that in case he has been in a state of excitement requiring sedation within the 2 weeks preceding the date of commencement of the flight, he shall be accompanied by a registered medical practitioner and adequate escort who shall individually and collectively be responsible for ensuring that no alcoholic drink or preparation is taken by the person in their charge and that such person is kept suitable sedated during the flight and shops en-route.” It is further state in the counter that the said rule which allows disabled person to travel in an aircraft and the disabilities Act 1995, is already implemented in the Civil Aviation Sector and no discrimination is made against any disabled person. The Airport and aircraft have suitably been designed to have easy access to Airport and aircraft for the benefit of physically challenged persons. The Civil Aviation Requirement is being suitable amended in consonance with the Persons with Disabilities (Equal Opportunities Act) and necessary directions are contemplated to be issued to all the Airliners to facilitate the carriage of physically challenged passenger by air by virtue of the powers conferred under Rule 133-A of the Aircraft Rules, 1937. 

 8. During the course of arguments Mr. P.Wilson, learned Assistant Solicitor General has produced a circular dated 2.5.2008 issued by the office of the Director General of Civil Aviation, New Delhi, wherein the Civil Aviation requirements in respect of carriage by Air to persons with disability and or persons with reduced mobility came to be issued. The salient features of the said circular are as follows:-

 “4.2 The airlines shall formulate a detailed procedure for carriage of disable persons or persons with reduced mobility and publish the same on their website.  

4.6 Many persons with disabilities do not require constant assistance for their activities. Therefore, if the passenger declares independence in feeding, communication with reasonable accommodation, toileting and personal needs, the airlines shall not insist for the presence of a n escort. 

4.9. Persons with disabilities not holding any certificate shall also be provided necessary assistance as well as the aids such as wheel chairs, ambulifts etc. In such cases during ticketing / check-in the individuals’ degree of disability and his need for assistance may be confirmed. Airlines shall not refuse carriage in such cases. However, cost of such facilities may be borne by passengers requiring them. 

Medical Clearance:- 

 5.1: No Medical clearance or special forms shall be insisted from persons with disabilities or persons with reduced mobility who only require special assistance at the airport for assistance in embarking /disembarking and a reasonable accommodation in flight, who otherwise do not require any additional assistance. 

5.2: A medical clearance by the airline may be required only when the airline has received information that the passenger a) suffers from any disease, which is believed to be actively contagious and communicable: b) who, because of certain disease, or incapacitation may have or develop and adverse physical condition which could have an adverse effect during flight and on safety and emergency evacuation procedures: c) would require medical attention and / or special equipment to maintain their health during the flights; d) there exists a possibility of medical condition aggravated during or because of the flight; Note: Persons with specific disabilities should plan to have all required forms for assistance ready in advance, to avoid flight delays. Forms and information will be made available on each airline’s website. 

5.3: Any passenger having any of the conditions mentioned in 5.2(a) through 5.2(d) be subjected to prior clearance for air travel by the medial departments /advisors of the carrying airlines. In case the passenger has a connecting flight with another airline, this medical clearance should be accepted at the first point of check-in and the information transmitted by the first Airlines to the connecting airlines so that the passenger is not required to furnish the same again and again. 

5.4: Before refusing carriage of any such passengers, the airlines shall refer to their medical departments /advisors for advise/clarification in accordance with a procedure, which shall be documented by the airlines. For such clearance the airline may seek the necessary medical information from the passenger(s) concerned or their representatives. Any forms for such information to be provided to the passengers by the airline staff will be made available on the airline’s website. 

5.5: The airline shall enter for each person with disabilities or person with reduced mobility or incapacitated passenger the information sheet requiring special assistance. Notes:1 – The airline shall establish a procedure for expeditious clearance by their medical departments, where required, to avoid delays causing inconvenience to passengers. Airlines shall provide necessary forms and procedures on their web-sites and through their call-centers/ agencies to make the process simple. The passengers should pre=clear themselves with the airline in advance. Notes:2 - The airline shall ensure that at time of check in airline staff is alerted and shall verify that all needs required by such passenger in advance in the relevant forms have been made available. 

Notes:3 – The procedures involving medical clearance shall be documented and published in each airline’s web-sites.  

Boarding, Seating and Briefing:- 

7.1: Boarding:-

a) The presence of all categories of incapacitated passengers and persons with disabilities or reduced mobility with their escorts and any special arrangements made for them while on board, shall always be referred to the captain/senior cabin crew member.

b) Incapacitated passengers and persons with disabilities or reduced mobility and their escorts shall be offered pre-boarding facilities.

c) If passengers for any reason have to be offloaded, the highest possible priority for transportation shall be given to persons with disability or persons with reduced mobility, and to their escorts. 

9. The said circular also provides for complaint procedure. As per the said procedure, a disabled person or person with reduced mobility who considers that this regulation has been infringed may bring to the attention of the managing body of airlines, airport or other concerned authorities, as the case may be and on receipt of such a complaint, shall ensure speedy and proper redressal of these complaints. 

10. Mr. P.Wilson, learned Assistant Solicitor General of India has submitted that in view of the said circular which came to be issued with affect from 1.5.2008, the grievance expressed by the petitioners and persons similarly placed have been taken into account and appropriate remedial measures have been provided and hence nothing survives in the writ petition. 

11. Mr. Ravi, learned counsel appearing for the respondents 3 to 5 has drawn the attention of this court to the averments made in the counter affidavit filed by the third respondent. According to the learned counsel, when the second petitioner was brought to check-in counter the shift in-charge of the third respondent attended him and found that the passenger was not fit to travel by air and that nobody had accompanied him and that he was asked for a fitness certificate. However, he gave irrelevant answers and also later started shouting at the staff in an abnormal way. It is further submitted by the learned counsel appearing for the respondents 3 to 5 that the respondents 3 to 5 had fully complied with the provisions of Indian Aircraft Rules 1937 as well as IATA medical manual. It is further submitted by the learned counsel that the second petitioner had invoked the jurisdiction of the State Consumer Redressal Forum by filing C.C.NO.37 of 2007 claiming compensation and the same was dismissed for default. As respondents 3 to 5 had complied with the laws applicable to them, the learned counsel for the respondents 3 to 5 submits that the present writ petition lacks merits and is liable to the dismissed. 

12. We have considered the submissions made by the respective counsel appearing for the parties and also perused the affidavit filed in support of the writ petition, counter affidavits, reply to the counter affidavit filed by the parties and also the circular dated 2.5.2008 issued by the office of the Director General of Civil Aviation. 

13. A perusal of the circular dated 2.5.2008 issued by the Director General of Civil Aviation would reveal that positive steps have been taken to alleviate the grievances of physically challenged persons in right earnest by the Director General of Civil Aviation and we hope and trust that further progress will definitely be made by the concerned authorities to redress the day to day problems faced by the physically challenged persons while they travel by air. 

14. The second petitioner herein has filed a complaint before the State Consumer Disputes Redressal Forum, Chennai in C.C.No. 37 of 2007, which came to be dismissed for default after the filing of this writ petition. The second petitioner was under the bona fide belief that he can get all reliefs in this writ petition and hence, allowed the said complaint to be dismissed for default. The alleged agony undergone by the second petitioner on 18.06.2007 was seriously disputed by the third respondent in its counter affidavit and aggrieved by the same, originally the second petitioner had filed the above said complaint before the State Consumer Disputed Redressal Form, which came to be dismissed for default as the second petitioner felt that in view of his impleadment in the writ petition, he cannot prosecute the said complaint. 

15. The question as to whether such person would be entitled to receive compensation obviously depends upon many factual findings based on evidence and the High Court is ill-equipped to deal with those aspects. However, we feel that the second petitioner should not suffer on that account and in the interest of justice, we feel; that without any application, the complaint in C.C.No. 37 of 2007 which was dismissed for default, can be restored to file and decided on its own merits. 

 16. We heard the learned counsel appearing for the respondents 3 to 5, who very fairly submitted that such an order of restoration can be passed in this writ petition itself. Accordingly, C.C.No.37 of 2007 filed by the second petitioner before the State Consumer Disputes Redressal Forum, Chennai, which was dismissed for default, stands restored to its file and it can be disposed of on its own merits. 

17. The circular dated 2.5.2008, issued by the Director General of Civil Aviation is an effective step in a right earnest. We feel that more effective steps have to be taken to alleviate the grievance of persons who are physically challenged and we hop and trust that such steps will definitely be on the cards. The writ petition is disposed of on the above terms. In the circumstances, there will be no order s to costs.

 Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar Gr. 

 To 

1. The Ministry of Civil Aviation, Chennai Airport, Meenambakkam, Chennai. 

2. The Secretary to Government, Ministry of Civil Aviation, Rajiv Gandhi Bhavan, Safdarjung Airport, New Delhi. 

 3. Air Sahara Airlines, Kamarajar Domestic Terminal. No.1, Link Building, Trisulam, Meenambakkam,Chennai-600 022 

 4. Chief Executive, Air Sahara (now known as Jet Lite). S.M.Centre, Anhjeri Koria Road, Andheri (East), Mumbai – 400 059. 

 5. Chief Executive Officer, Jet Airways (India) Ltd., S.M.CentreAndheri Koria Road, Andheri (East), Mumbai-400 059. 

 6. Director General of Civil Aviation opposite to Safdurjung Airport, New Delhi. 

 7. Chief Commissioner for Disabilities , Govt. of India, Sarojini House, No.6, Bhagawandoss Road, New Delhi – 110 001. 

 1 cc To Mr. P.Wilson, Advacate, SR.33533. 

1 cc To Mr. Gupta & Ravi, Advocate, SR.33150 

1 cc To Mr. P.B.Suresh Babu, Advocate, SR. 33188. w.p.no.23379 of 2007 nsm(co) 

RVL 11.07.2008

MCI not allowing a candidate with polio in upper limbs to pursue PG Course

Hi,
Here is yet another example of attitude- (often attitudes have been termed as real disabilities!) of MCI not allowing the petitioner in this case to pursue her PG Course in Radiology.

Saroj Yadav, who has post polio residual paralysis of the right hand between the shoulder and the elbow, has completed MBBS from Grant Medical College and is currently pursuing PG course in radiology which was opposed by the MCI.

According to MCI rule, candidates with upper limb disabilities are not eligible for admission to MBBS course, too. However, as a result of this petition, the Bombay High Court has clearly said that the Candidate has proved that the rule is Bad and granted provisional admission to Saroj.

Often authorities fail to even recognise the abilities of the people with upper limb disabilities. A person with a congenital both arms malformation is not suitable for any job as per the Identification List published by Government of India. However, the list itself is not exhaustive and only indicative. In such a scenario the authorities fail to appreciate the abilities of the candidate and unilaterally close all doors of opportunities for them.

You may read the detailed news article at http://www.svayam.com/?q=node/714 and just wait for the final judgement which I shall post on this very blog.
warm regards
SC Vashishth

Delhi HC: Directs appropriate Govts to take adequte steps within the limits of their economic capacity and development to implement section 46 of PWD Act 1995 to ensure Accessibility & Barrier Free Environment

Court: Delhi High Court

Bench: Hon'ble Mr. Justice T.S. Thakur, Hon'ble Ms. Justice Aruna Suresh

Case No: WP (C) 812 of 2001

Case Title: Javed Abidi Vs. Union of India & Others

Date of Judgement: 21 January 2008

Act: The Persons with Disabilities Act 1995

Subjecct : Accesssibility; Barrier Free Environment for persons with disabilities; Implementation of Section 46 of The Persons with Disabilities Act 1995

Brief: 

Mr. Javed Abidi filed this writ petition before the High Court of Delhi. He was aggrieved on the removal of temporary wooden ramps from the Red Fort, Qutub Minar, Humayan’s Tomb, Jantar Mantar and other similar monuments of historic importance. These ramps were fabricated and fixed by the Ministry of Social Justice and Empowerment and Archaeological Survey of India during the visit of Mr. Stephen Hawkins, the renowned physicist (Wheelchair User), who wanted to see these monuments.

After his visit the Archaeological Survey of India decided to remove these ramps. Abidi filed the case seeking justice in accordance with Section 46 of the Disabilities Act, 1995, which mandates ramps in public places for wheelchair access. The petitioner urged the Court for directing the respondent not to remove the wooden ramps and instead to erect permanent ramps ensuring barrier-free access to persons with disabilities. 

Read the Judgement:

Supreme Court | Bhagwan Dass & Anr Vs. Punjab State Electricity Board | 04 Jan 2008 | Section 47 of PWD Act 1995

Court:  Supreme Court of India

Bench: Hon'ble G.P.Mathur, Hon'ble Aftab Alam, Justices

Case No.: Appeal (Civil)  8 of 2008   [Arising out of SLP) No.26357/2005] 

Case Title: Bhagwan Dass & Anr vs Punjab State Electricity Board 

Date of Judgement: 4 January, 2008

Author: A Alam, J.

JUDGMENT:

Leave granted.

This case highlights the highly insensitive and apathetic attitude harboured by some of us, living a normal healthy life, towards those unfortunate fellowmen who fell victim to some incapacitating disability. The facts of the case reveal that officers of the Punjab State Electricity Board were quite aware of the statutory rights of appellant No.1 and their corresponding obligation yet they denied him his lawful dues by means that can only be called disingenuous.

The facts of the case are brief and are all taken from the (Reply) Affidavit filed on behalf of the Punjab State Electricity Board and its officers (the respondents in the appeal). Appellant No.1 joined the respondent Board on July 19, 1977, on ad-hoc/work-charged basis. His services were regularized as an Assistant Lineman on June 16, 1981. While in service he became totally blind on January 17, 1994 and a certificate to that effect was issued by the civil surgeon, Faridkot.

Here, it may be noted that the rights of an employee who acquires a disability during his service are protected and safeguarded by Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Section 47 reads as follows : 

"47. Non-discrimination in Government employments.  (1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service:

Provided 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 in 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.  

It may further be noted that the import of Section 47 of the Act was considered by this court in Kunal Singh vs. Union of India & Anr. [2003 (4) SCC 524] and in paragraph 9 of the decision it was observed and held as follows :

"Chapter VI of the Act deals with employment relating to persons with disabilities, who are yet to secure employment. Section 47, which falls in Chapter VIII, deals with an employee, who is already in service and acquires a disability during his service. It must be borne in mind that Section 2 of the Act has given distinct and different definitions of "disability" and "person with disability". It is well settled that in the same enactment if two distinct definitions are given defining a word/expression, they must be understood accordingly in terms of the definition. It must be remembered that a person does not acquire or suffer disability by choice. 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 benefits; 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 employee shall not dispense with or reduce in rank an employee who acquires a disability 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." (Emphasis added) 

After the Act came into force with effect from December 7, 1996 (vide S.O.107(E) dated 7th February, 1996), the Government of Punjab, Department of Personnel and Administrative Reforms, issued a letter dated September 24, 1996 directing all the heads of departments to comply with Section 47 of the Act. The Punjab State Electricity Board too adopted the Government letter under its Circular No.6/97, dated February 17, 1997.

In view of Section 47 of the Act and the Circulars issued by the State Government and the Board it is clear that notwithstanding the disability acquired by the appellant the Board was legally bound to continue him in service. But on behalf of the respondent it is stated that the disabled employee himself wanted to retire from service and, therefore, the provisions of Section 47 had no application to his case. Here it needs to be made clear that at no stage any plea was raised that since the appellant was declared completely blind on January 17, 1994 he was not covered by the provisions of the Act that come into force on February 7, 1996. Such plea can not be raised because on February 7, 1996 when the Act came into force the appellant was undeniably in service and his contract of employment with the Board was subsisting. His case was, therefore, squarely covered by the provisions of the Act.

Coming now to the reason assigned by the Board to deny him the protection of Section 47 of the Act, it is stated on behalf of the respondents that he remained absent from duty without any sanctioned leave from January 18, 1994 to March 21, 1997. He was directed by the Executive Engineer to resume duties vide Memo No.412, dated March 16, 1994 and Memo No.6411, dated August 4, 1994. He, however, failed to report for duty and on September 13, 1994, a charge sheet was issued initiating disciplinary proceedings against him for gross misconduct under regulation 8 of the Punjab State Electricity Board Employees Punishment & Appeal Regulation 1971. The matter appears to have lain dormant for sometime and then it is stated that the appellant by his letter dated July 17, 1996 requested the Board to retire him from service. As a matter of fact by this letter the appellant sought to explain his absence from duty and requested that his wife might be employed in his place. But it was made the basis for denying the appellant his lawful dues. Since the whole case of the respondents is based on this letter it would be appropriate to reproduce it in full :

"Sir, I explain as under the subject cited unnatural happening which I met, When I was returning home after performing my duty on 17-1-94 then vision of my eyes lessened suddenly. I got treatment from far and near for eye-sight/lessening of vision of my eyes. But I became completely blind. Now I cannot perform my hard work duty. I want to retire from service. I may be retired and my wife may be provided with suitable job against me. Yourself will be genesis to me." (Emphasis added) 

At this stage some internal correspondences took place between the officers of the Board over the question how to deal with the appellant. On July 10, 1997, the Senior Executive Engineer (OP) Division, Malout wrote to the Deputy Chief Engineer, Operation Circle, Muktsar, asking for instructions in the matter. Paragraphs 2, 3 and 4 of the letter are relevant and are reproduced below :

"2) As per report of Medical Board the official is unfit for duty, he cannot perform any duty.

3) But as per instructions contained in Punjab Government Memo No.17/16/94-5 PP-1/6546 adopted by PSEB vide its Circular No.6/97 the official/officer it (sic is) not to be retired from service who become disable during service.

4) The official has represented that he may be retired from duty and his wife be provided with suitable job."

The Senior Executive Engineer received the reply from the Secretary of the Board vide letter dated February 17, 1998 in which he was advised as follows :

"It is advisable to retire the official as per rules and regulations of the Board if the employee is not otherwise interested in taking the benefit of Board's Circular No.6/97.

For the purpose of clarification as to whether employee is entitled to the benefits, otherwise admissible under rules/regulations of the Board in preference to Benefits admissible under Circular No.6/97, if he so desires, can be obtained from the Office concerned which issued said circular." 

Later on, the charge-sheet issued against the appellant was withdrawn by the Senior Executive Engineer vide Office Order No.14, dated January 13, 1999 and the appellant was asked to submit leave application for the period of absence.

Next in series is a letter, dated November 15, 1999, from the Director/IR, PSEB, Patiala to the Senior Executive Engineer, (OP) Division, Malout. In this letter it was stated as follows :

"As per cited subject it is made clear that employee who is blind shall not be retired as per instructions of the Board. But is (sic. if) such employee himself make request for retirement then he can be given retirement on medical ground." 

Finally, the Senior Executive Engineer, issued Office Order No.559, dated December 14, 1999, by which the appellant was relieved from service with effect from March 21, 1997 (the date of issuance of Medical Certificate) as per Rule 5.11 of Civil Services Rules-Vol.II.

It appears that the appellant protested against the action of the Board in relieving him from service and made representations. The representations, it seems, were forwarded to the superior authorities and the Board's decision was communicated to the Senior Executive Engineer vide letter dated February 18, 2000 from the Director/IR, PSEB, Patiala. The contents of the letter are as follows : 

"With regard to cited subject it is made clear that there are instructions of the Board on which blind employee is not liable to be retired. But in the case of Shri Bhagwan Dass ALM advice of retirement was given as he himself made request for his retirement on Medical Ground. So the case of this employee is not likely considered for his rejoining of duty."

The appellant then filed an affidavit before the concerned officers. A copy of the affidavit is at Annexure R-12 to the respondents' affidavit. In the affidavit he pathetically pleaded that he had no knowledge about the Rules of the Electricity Board and represented for retirement unknowingly. He further stated that when he came to know that there was no need for retirement for those who were disabled during service he again represented that he might not be retired and might be retained in service as per the instructions of the department. The affidavit did not evoke any response but the severance was completed by making payment of his terminal dues.

The disabled employee then approached the Punjab & Haryana High Court in Civil Writ Petition No.12534 of 2004 seeking relief in terms of section 47 of the Act and the Circulars issued by the State Government and the Board in its furtherance. In the writ petition he was joined by his son, appellant No.2, and an alternative relief was sought for employment of his son in his place. Unfortunately, before the High Court it was the second relief that came into focus and the High Court dismissed the writ petition by a brief order referring to the decision of this Court in Umesh Nagpal vs. State of Haryana [1994 (3) SCT 174]. 

In the High Court order there is no mention of Section 47 of the Act and the disabled employees' claim/right on that basis. Against that order this appeal is preferred in which the disabled employee agitates his rights on the basis of Section 47 of the Act. From the materials brought before the court by none other than the respondent-Board it is manifest that notwithstanding the clear and definite legislative mandate some officers of the Board took the view that it was not right to continue a blind, useless man on the Board's rolls and to pay him monthly salary in return of no service. They accordingly persuaded each other that the appellant had himself asked for retirement from service and, therefore, he was not entitled to the protection of the Act. The only material on the basis of which the officers of the Board took the stand that the appellant had himself made a request for retirement on medical grounds was his letter dated July 17, 1996. The letter was written when a charge sheet was issued to him and in the letter he was trying to explain his absence from duty. In this letter he requested to be retired but at the same time asked that his wife should be given a suitable job in his place. In our view it is impossible to read that letter as a voluntary offer for retirement. Appellant No.1 was a Class IV employee, a Lineman. He completely lost his vision. He was not aware of any protection that the law afforded him and apparently believed that the blindness would cause him to lose his job, the source of livelihood of his family. The enormous mental pressure under which he would have been at that time is not difficult to imagine. In those circumstances it was the duty of the superior officers to explain to him the correct legal position and to tell him about his legal rights. Instead of doing that they threw him out of service by picking up a sentence from his letter, completely out of context. The action of the concerned officers of the Board, to our mind, was deprecatable. 

We understand that the concerned officers were acting in what they believed to be the best interests of the Board. Still under the old mind-set it would appear to them just not right that the Board should spend good money on someone who was no longer of any use. But they were quite wrong, seen from any angle. From the narrow point of view the officers were duty bound to follow the law and it was not open to them to allow their bias to defeat the lawful rights of the disabled employee. From the larger point of view the officers failed to realise that the disabled too are equal citizens of the country and have as much share in its resources as any other citizen. The denial of their rights would not only be unjust and unfair to them and their families but would create larger and graver problems for the society at large. What the law permits to them is no charity or largess but their right as equal citizens of the country.

In light of the discussions made above, the action of the Board in terminating the service of the disabled employee (appellant No.1) with effect from March 21, 1997 must be held to be bad and illegal. In view of the provisions of Section 47 of the Act, the appellant must be deemed to be in service and he would be entitled to all service benefits including annual increments and promotions etc. till the date of his retirement. The amount of terminal benefits paid to him should be adjusted against the amount of his salary from March 22, 1997 till date. If any balance remains, that should be adjusted in easy monthly installments from his future salary. The appellant shall continue in service till his date of superannuation according to the service records. He should be reinstated and all due payments, after adjustments as directed, should be made to him within six weeks from the date of presentation of a copy of the judgment before the Secretary of the Board.

In the result the appeal is allowed with costs quantified at Rs.5,000/-.

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Supreme Court: A disabled constitute a special class and thus there should be not further reservation for disabled persons on the basis of caste, creed or religion.

Court: Supreme Court of India

Bench:  S.B. Sinha, Harjit Singh Bedi, Justices

Case No.:  Civil Appeal No. 3984 of 2007 [Arising out of SLP (Civil) No. 16291 of 2004]

Case Title: Mahesh Gupta & Ors vs Yashwant Kumar Ahirwar & Ors 

Date of Judgement:     30/08/2007

Author: S.B. Sinha

Case Note: Service – Reservation – Commissioner issued advertisement for special recruitment drive for filling the vacant reserved post out of which 8 were reserved for Schedule Castes and 8 were reserved for disabled persons - Appellants were disabled persons belonging to general category were selected – Respondent No. 1 was disabled candidate belonging to reserved category and was not selected - Tribunal held that respondent No. 1 had no right for appointment – On appeal High Court directed State to determine whether at relevant date any post of handicapped candidate in reserved category was vacant – Subsequently State terminated the appointment of appellant on ground that advertisement issued by Commissioner was not proper – Hence, present appeal – Held, the State under Article 16 can make two type of reservations vertical and horizontal – The State had adopted a policy for filling up the reserved posts for the handicapped persons by making horizontal reservation – A disabled constitute a special class and thus question of making any further reservation on basis of caste, creed or religion does not arise – Thus Order of High Court terminating appellant set aside – Appeal allowed

RatioDecidendi: Reservation – Disabled person – A disabled constitute a special class and thus there should be not further reservation for disabled person on the basis of caste, creed or religion. Constitution provides for horizontal reservation for disabled persons.

JUDGMENT:

J U D G M E N T CIVIL APPEAL NO 3984 OF 2007 [Arising out of SLP (Civil) No. 16291 of 2004] WITH CIVIL APPEAL NOs. 3985 and 3986 OF 2007 [Arising out of SLP (Civil) Nos. 19391 and 20321 of 2004] S.B. SINHA, J :

1. Leave granted.

2. Interpretation of an advertisement in the light of a circular of the State of Madhya Pradesh as regards recruitment of handicapped persons to some posts is in question in these appeals which arise out of judgments and orders dated 1.5.2003 and 23.08.2004 passed by the High Court of Madhya Pradesh in Writ Petition No. 40 of 2000 and M.C.C. (Contempt) No. 222 of 2003.

3. The State took recourse to a special drive for filling up the vacant posts in the reserved category candidates, viz., Scheduled Castes, Scheduled Tribes and Backward Classes. In a circular letter issued on 29.03.1993, it was stated:

"SUBJECT: SPECIAL DRIVE FOR FILLING UP RESERVED POSTS FOR HANDICAPPED PERSONS The State Government has reserved 3% posts (1% for blinds and 2% for other physically handicapped persons) for disabled persons. By the Notification of the State Government vide No. 50-2532-1(3)/80 dated 12th of February, 1991, exemption for 10 years in the prescribed age limit has been granted to the candidates belonging to blind, dumb, deaf and disabled persons eligible for services for the posts of the categories of 3rd and 4th grades, to be filled in the services of the State Government through Employment Exchanges (copy enclosed). In the orders of the Finance Department No. L-17-1-87-B-7-4 dated 4th of June, 1987 in paragraph 2, exemption has also been granted from the ban imposed for appointment in the government services, prescribed only for handicapped persons against the reserved posts.

It has been brought to the knowledge of the State Government that this quota for the handicapped persons is not being fulfilled due to absence of knowledge about reservation and procedural complications. Extending the full benefit against the reserved posts in the government services as per the prescribed quota for the handicapped persons, cannot be determined as a fair situation."

It was inter alia directed:

"In this connection, it is worth mentioning that for the successful conduct of the aforesaid campaign and for the implementation of the said policy of the State Government, call for the names from the Employment Exchanges, for the vacancies at District level, the District Collector, and for the vacancies at Divisional level, the Divisional Commissioner, and for the vacancies at Heads of the Department, the concerning Heads of Department have been authorized. These authorization shall be limited only up to the posts of 3rd and 4th grades. So far as the question about 2nd Grade is concerned, this authority shall vest with the State Government, but the procedure regarding examination, interview etc., could be conducted at the level of the Head of the Department."

4. Pursuant to or in furtherance of the said circular letter, the Commissioner, Chambal Division, Morena issued an advertisement, the heading whereof is as under:

 "SPECIAL RECRUITMENT DRIVE FOR FILLING UP THE VACANT RESERVED POSTS OF SCHEDULED CASTE AND SCHEDULED TRIBE:"

However, while providing for the details of the posts, it was categorically laid down:

"Name of Post (s)	Vacant Posts : SC  ST Handicapped	Minimum Qualifications	Pay-Scale
1. Higher Grade Teachers = English-14 and Sanskrit - 8	-  20  02	Graduate in relevant subject passed in 2nd Div. & Trained (B.Ed. B.T.C.)	1400-2640
2. Industries Craft Teacher	-    17    02	Hr. Sec. Exam  (Intermediate) & Diploma in  concerning craft by an Institute recognized by the Government	1400-2640
3. Assistant Teacher (Science)	-    08    03	Hr. Sec. Exam (Intermediate) Science with the Subjects, Physics, Chemistry, Biology	1200-2040
4.  Artists	-     01     -	Graduate Degree in Arts from J.J. School of Arts and one year experience in commercial photography	1400-2340
5. Dietician	01   -    -	M.Sc. (Home Science) or B.Sc. (Home Science) - 2 nd Division & essentiality of Food craft subject	1400-2340
6.  II Gr. Clerk	-   01   -	1. Hr. Secy, or High School passed 2. Hindi Typing passed from M.P. Board	950-1530
7. Steno-Typist	-   05   -	1 & 2 ==ditto= 3. Knowledge in Hindi Stenography	950-1530 +75
8. Stenographer	-   05   -	1 & 2 as above + 3. Dictation in Hindi Stenography with the speed of 60 words per minute as prescribed by Govt.
9. Tracer	-   01  -	1. Hr. Secy./High Sch. with l.T.I. passed. 2. Drawing Diploma or Civil Engineering Diploma	950-1530
10. Assistant Cartographer	-  02  -	Passed Hr. Secy. Exam, and Degree/ Diploma in the Craft or Certificate of Draftman in Civil Engineer from I.T.I, or Surveyor Trade Certificate	Pay as prescribed by Govt.
Total	01 60 07”

5. We are concerned with the posts of Assistant Teacher (Science). Appellants herein belonged to the general category. They, however, suffer from disability. They are handicapped persons. Respondent No. 1 Yashwant Kumar Ahirwar, a handicapped person but also belonging to the reserved category candidate was not selected. He approached the Administrative Tribunal. The Administrative Tribunal by a judgment and order dated 27.11.1999 opined that he had no right of appointment on the post of Assistant Teacher (Science) having not been selected by the Selection Committee stating:

"4. On perusal of the advertisement published in the Rojgar Nirman dt. 26th May, 1994 (Ann. P.8), it appears that the respondent had advertised 8 posts for the reserved category for scheduled castes and 8 posts for the handicapped persons. The respondents showed the reserved category separately in the body of the advertisement, though the heading of such advertisement is misleading that applications are also invited from the candidates belonging to the category of S.C. & S.T. but the body of the advertisement leaves no room for doubt that 8 posts were got reserved for the candidates belonging to the Scheduled Castes and 3 posts for handicapped persons without having any caste wise reservation. The respondent made it clear in their return that there was also special drive to fill the vacancies belonging to the handicapped persons pursuant to the circular issued by the State Government on 29th March, 1993 (Ann.J-1). There was clear direction therein that such vacancies should be filled by the end of 30th June, 1993"

6. On a writ petition having been filed by him, the High Court, however, by reason of the impugned judgment while setting aside the order of the Tribunal, directed:

"….Therefore, in the said facts of the case it will be appropriate that the State Government should examine minutely and decide whether the posts could be filled from the general category when advertisement was for reserved category mentioned in the advertisement. The State Government shall also examine whether these posts are to be filled from the members of scheduled tribes only or from the members of scheduled castes only or from the category of other backward castes or these posts were for all the categories mentioned above. State Government should also consider whether the reservation was in accordance with the reserved proportion shown in the Annexure-R/1 filed by the State. Annexure R/1 is issued by the State Government on 29th March, 1993. State shall also examine whether at the relevant date any post of the handicapped candidate in general category was vacant. If no post was vacant then no person from general category could be appointed against these posts. State shall determine that the category advertised had been properly filled. The entire exercise be conducted within a period of three months from the date of communication of the order..."

7. The stand of the State before the Tribunal as also the High Court had been that the posts reserved for the handicapped persons were open to all. Even after the direction of the High Court, the State was of the view:

"1 The filling of the three posts of Assistant Teachers (Science) as mentioned in the Advertisement, could be carried out from the handicapped candidates of any category.

2 The Advertisement published by the Commissioner, Chambal Division, regarding special drive for recruitment of Scheduled Caste/Tribes and filling of the posts of handicapped persons, was issued in compliance of the instructions issued from time to time by the General Administration Department and the Circular vide No. F.9- 2/93/1/Res.Cell, Bhopal Dated 29th of March, 1993, but in the language of the heading of the Advertisement, the words " and handicapped" should have been used along with Scheduled Caste/Tribes, which has not been done so.

3 At that time in the quota for the handicapped persons, 3 posts of Assistant Teacher (Science) were vacant, for filling of the same, proposals were forwarded by the Joint Director, Education, Gwalior Division, vide its letter No. Estt.3/DRA/Gwalior/268 dated 1st of March, 1994, to the Commissioner, Chambal Division.

Resultantly, simply in the language of the heading of the Advertisement, because of not mentioning of the word "Handicapped" at the relevant time, the selection committee has fully complied with the directions/instructions issued by the Government, and the selection procedure is without any fault and guiltless."

8. A contempt petition was filed at a later stage. In the contempt proceedings, the State took a volte face. It inter alia took the stand that the advertisement was not proper and directed:

"9. Resultantly, the advertisement issued by the Commissioner, Chambal Division and published on 26th of May, 1994 in Rojagar Samachar, was not proper advertisement relating to vacant posts for the category of handicapped persons. Therefore, on the basis of this advertisement, selection made against the quota for handicapped persons, being not proper, is liable to be cancelled. Because the handicapped teachers are presently in service selected on the basis of this selection, their services will have to be terminated, and, therefore, the competent officer shall issue a show-cause notice to them, an opportunity for being heard, should be extended to them."

9. In terms of the said decision, a show cause notice was issued upon the appellants herein as to why their services shall not be terminated. The services of the appellants were terminated. Appellants filed a Special Leave Petition against the original order dated 1.05.2003. However, it is now accepted that services of some of the appellants have been terminated.

10. The State in terms of Article 16 of the Constitution of India may make two types of reservations  vertical and horizontal. Article 16(4) provides for vertical reservation; whereas Clause (1) of Article 16 provides for horizontal reservation.

11. The State adopted a policy decision for filling up the reserved posts for handicapped persons. A special drive was to be launched therefor. The circular letter was issued only for the said purpose. A bare perusal of the said circular letter dated 29.03.1993 would clearly show that the State had made 3% reservation for blinds and 2% for other physically handicapped persons. Such a reservation falling within Clause (1) of Article 16 of the Constitution has nothing to do with the object and purport sought to be achieved by reason of Clause (4) thereof.

12. Disability has drawn the attention of the worldwide community. India is a signatory to various International Treaties and Conventions. The State, therefore, took a policy decision to have horizontal reservation with a view to fulfil its constitutional object as also its commitment to the international community. A disabled is a disabled. The question of making any further reservation on the basis of caste, creed or religion ordinarily may not arise. They constitute a special class. The advertisement, however, failed to mention in regard to the reservation for handicapped persons at the outset, but, as noticed hereinbefore, the vacant posts were required to be filled up for two categories of candidates; one for Scheduled Castes and Scheduled Tribe candidates and other for handicapped candidates. Handicapped candidates have not been further classified as belonging to Scheduled Castes, Scheduled Tribes and general category candidates. It is a travesty of justice that despite the State clarified its own position in its order dated 1.01.2004 and stated that the posts were vacant under the handicapped quota but it completely turned turtle and took a diagonally opposite stand when a contempt petition was filed. In its reply in the said proceedings, reference was made to the aforementioned order dated 1.01.2004 but within a short time, viz., on 4.02.2004 it opined on a presumption that as the word "handicapped" was not mentioned in the heading of advertisement they were meant only for Scheduled Caste and Scheduled Tribe candidates. Rule of Executive Construction was given a complete go bye. Reasonableness and fairness which is the hallmark of Article 14 of the Constitution of India was completely lost sight of. The officers of the State behaved strangely. It prevaricated its stand only because a contempt proceeding was initiated. If the State was eager to accommodate the writ petitioner /respondent, it could have done so. It did not take any measure in that behalf. It chose to terminate the services of some of the employees who had already been appointed. Such a course could not have been taken either in law or in equity. The State is expected to have a constitutional vision. It must give effect to the constitutional mandate. Any act done by it should be considered to have been effected in the light of the provisions contained in Part IV of the Constitution of India. The State in terms of the provisions contained in Part IV should have given effect to the principles embodied in Article 39 of the Constitution of India. Whereas a reasonable reservation within the meaning of Article 16 of the Constitution of India should not ordinarily exist, 50%, as has been held by this Court in Indra Sawhney v. Union of India [1992 Supp (3) SCC 212 : AIR 1993 SC 477], reservation for women or handicapped persons would not come within the purview thereof.

13. Furthermore, when the decision was taken, the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short "the 1995 Act") had come into force. In terms of the 1995 Act, the States were obligated to make reservations for handicapped persons. The State completely lost sight of its commitment both under its own policy decision as also the statutory provision.

14. For the reasons aforementioned, we not only set aside the judgment of the High Court but also direct that the persons whose services have been terminated in terms of 4.02.2004 should be continued in service. We furthermore direct that they should be paid back wages as also other service benefits. Respondent No. 1 could have been considered both as handicapped persons as also Scheduled Castes and Scheduled Tribes. If all the vacancies meant for Scheduled Castes, Scheduled Tribe had not been filled up, the State may consider appointing him. If he has already been appointed, the State may consider the desirability of creating a supernumerary post and continue his service therein.

15. The appeals are allowed with costs. Counsel's fee assessed at Rs. 25,000/- in each case.

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