Wednesday, September 24, 2008

Why principal of "Equal Pay for Equal Work" doesn't apply to Special Educators at NGOs vis-a-vis National Institutes on Disability?

Dear Friends,

I want to share with you a recent judgement of the Double Bench of Delhi High Court in which the petition was disallowed by the Honorable court.

Appended is the detailed judgement, for a post mortem of the case as to what went wrong. I also want ot explore some additional grounds with which we could approach next higher court to seek redressal.

No doubt the matter was genuine and it is Government of India that is responsible for the empowerment and welfare of people with disabilities more particularly providing free & quality education up to the age of 18. It can be well imagined that those who are employed to work to empower and train PWDs needs to be reasonably provided for if we want a true rehabilitation. Having this in mind the petition was prepared on the grouds of Equal pay for Equal Work between employees of NGOs and Employees of National Institute on Disabilities.

However, the interpretation of the court is little on the other extreme. Perhaps the grounds that were taken may not have been very convincing and additional grounds must be added.

You may have a view different from this and may well suggest me some better ideas. So leaving it to your reason! Here goes the judgement:

IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 31.10.2007Judgment delivered on: 04.07.2008

W.P. (C ) No. 2040/199504.07.2008

All India Confederation of the Blind ... Petitioner
Through: Mr. P.N. Lekhi, Sr. Advocate with Mr.Rajan Chaurasia andMr. Jaspreet Singh Rai, Advs.

versus

Union of India and Others ..... Respondents
Through: Mr. Rajive Mehra, Adv.

CORAM:
HON'BLE MR. JUSTICE A.K. SIKRIHON'BLE MR. JUSTICE VIPIN SANGHI

1. Whether the Reporters of local papersmay be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? YES

VIPIN SANGHI, J.

1.In this petition under Article 226 of the Constitution of India, thepetitioner seeks a writ of mandamus, directing the respondent not to treat teachers/employees of organisations run by the petitioner differently from teachers/employees of similar organisations run by the respondents in the matter of pay scales, on the ground that the nature of work undertaken by both classes of teachers/employees are identical. A consequential declaration is sought that the pay sanctioned for the employees of the petitioner is arbitrary,discriminatory and unreasonable.

2.The petitioner society is registered under Andhra Pradesh (Telengana Area)Public Societies Registration Act, 1950 and has 18 affiliates all over thecountry providing educational and rehabilitative services for the blind. The petitioner states that it is an organisation which provides a wide range ofeducational, vocational and adjustment-training facilities, both to the congenitally blind as well as persons who may have developed visual handicaps later in life, in a systematic manner.

3.Union of India (Respondent No.1) has framed a scheme which provides for assistance in the form of grant-in-aid to eligible voluntary organisations/institutions to cover upto 90% of the expenditure incurred byvoluntary organisations such as the petitioner, under specified heads, including salaries of the staff employed by such organisations. With the help of such assistance the petitioner claims that it has been able to run educational institutions like Captain Chandan Lal School for the Blind and The Shorthand Training Programme at Rohini. The Respondent No.1 also runs and funds organisations and institutes similar to that of the Petitioner, like National Institute of the Visually Handicapped, Dehradun (hereinafter referred to as NIVH). Respondent No.2, being the Govt. of National Capital Territory of Delhi, runs similar government schools for the blind.

4.The petitioner submits that the educational curriculum of the blind is farmore onerous and demanding than teaching students not suffering from any such disability and this system of education is known as "Special Education". However, the petitioner contends that staff employed by the petitioner get 1/3rd the pay sanctioned to staff of the NIVH and the government schools for the blind run by the Respondent No.2. Thus, the Petitioner craves parity in payscales invoking the principle of equal pay for equal work. It is also the grievance of the Petitioner that the policy formed by the Government only provides for a consolidated salary and no scale of pay is prescribed, nor anyother allowances/benefits are provided for.

5.The Petitioner has placed on record various comparative charts showing the difference in pay between the staff employed by NIVH and Respondent No.2 on the one hand, and the staff employed by the petitioner on the other hand. The Petitioner in order to further its submissions takes aid of the ?Scheme of Integrated Education for the Disabled Children 1992?, which provides for assistance to State Governments/UT Administrations/autonomous organisationshaving experience in the field of education and/or rehabilitation of the disabled, the agencies through which the said scheme is purported to be implemented. The said scheme seeks to provide disabled students with an opportunity to integrate in the mainstream educational system in the form of common schools in place of special schools. The scheme further provides (a)teacher-pupil ratio of 1:8 (b) basic qualifications required for appointment as Special Teachers, and (c) scales of pay for such special teachers along with special allowance admissible to them. The petitioner relies upon the stipulation regarding scales of pay, as laid down in the said scheme in Clause 12.3, whichstates that ?The same scales of pay as available to the teachers of the corresponding category in that State/UT will be given to Special Teachers?. It further provides for payment of special pay, in recognition of the special type of duties that such teachers discharge.

6.The petitioner pleads that the work undertaken by it is facing insurmountable difficulties regarding retention of staff, since inferior scales of pay do not make employment under the petitioner an attractive proposition. The grant-in-aid granted by the Respondent no.1 can only go upto 90% of the approved expenditure incurred by it since, under the policy, specific basic pay is sanctioned for each type of teacher/employee employed by voluntary organisations and the grants are admitted, accordingly. The petitioner pleads that it doesnot have the funds to make the balance 10% payment to its employees and continue the work started by it. The petitioner claims that in the face of this resource crunch, it is confronted with the prospect of having to close down its services.

7.In its reply respondent No.1 has stated that the grant-in-aid is sanctioned upto 90% of the expenditure approved by the Ministry and not upto 90% of the total expenditure incurred by the voluntary organisation. The grant-in-aid covers 90% of the approved basic pay of the staff employed by a Voluntary Organisation, and that there is no provision for allowance like DA, HRA etc.Furthermore, the respondent submits that the scheme under which grant-in-aid is considered, prescribes compensation in different ranges depending upon the qualification of the incumbent. No parity can be drawn between the employees of autonomous organisations fully aided by the Government and under its administrative and financial control, and employees of a voluntary organisation to which Government provides only limited assistance. The Respondent also contends that one of the conditions of the said scheme is that the grant-in-aid may be considered only upto 90% of the expenditure approved by the Ministry and is admissible to such a voluntary organisation, which has the capability of meeting the remaining expenditure either through its own resources or through voluntary effort. If an organisation is not able to meet its balance expenditure, it is not eligible for grant-in-aid from the Ministry. The respondent points out that the petitioner had made the proposal for getting grant-in-aid and also receives the amount after expressly accepting this condition.

8.The petitioner in its rejoinder maintains that the employees of the organisation run by it are entitled to parity in all emoluments in addition to basic pay. The petitioner maintains that the disparity in the pay scale is apparent from a bare perusal of the appended comparison charts, and therefore, it claims equality of pay.

9.By an order dated 20.01.1997, this Court had asked the petitioner to file an affidavit bringing out the comparison between the pay of employees of the petitioner and the respondent and their work and responsibilities. We have taken the affidavit dated 06.02.1997 filed in response to that order into consideration. The Union of India, during the pendency of the petition, cameout with a new comprehensive scheme, and an additional affidavit in this respect was allowed to be filed vide order dated 09.09.2002. The Union of India has filed a comprehensive affidavit dated 20.09.2002 of Sh. P.K. Ravi, UnderSecretary to the Govt. of India, Ministry of Social Justice and Empowerment. Inthe said affidavit the respondent submits that at the time when the petition was filed, the Ministry of Social Justice and Empowerment (formerly known as?Ministry of Welfare?) had five distinct schemes, dealing with the welfare of handicapped/disabled persons through non-government organisations. Of these fiveschemes, four schemes envisaged, inter alia, the grant of aid for salaries/honorarium to be paid to the employees/personnel of the NGOs. At thetime of filing of the petition the petitioner NGO was receiving grants-in-aid towards contribution in respect of salaries/ honourarium for its personnel undertwo schemes, viz. ?Scheme of Assistance to Organizations for the Disabled? forits project called ?Braille Shorthand and Typing Training Programme?, and under?Scheme of Assistance to Voluntary Organizations for Special School for Handicapped Children? for its Chander Lal Special School for Blind.

10.A new umbrella scheme called ?Scheme to Promote Voluntary Action for Persons with Disabilities? was introduced and made effective from 1999-2000, whichsubstituted the earlier schemes under which petitioner was receiving aid. Thesaid scheme was formulated to fulfill the obligations cast on the Governmentunder the Persons with Disabilities (Equal Opportunities, Protection of Rightsand Full Participation) Act, 1995. The respondent submitted that theassistance/grant provided by the Central Government was not unlimited and wastendered and fixed on the twin criteria of firstly, merits of each case andsecondly, availability of the funds from the overall budget allocated forwelfare activities for physically handicapped/disabled person. It has beenstated that when the grant-in-aid was sanctioned to the petitioner, it was madeclear that ?the grant-in-aid from the Central Government will be tendered on themerits of each case and will not exceed 90% of the non-recurring and recurringexpenditure. The remaining expenditure will be normally borne by theorganisation?. The respondent emphasizes that the figure of 90% grant-in-aid iswith reference to the eligible and approved amount of expenditure, and not thetotal amount of its expenditure, incurred by the NGO. Therefore, the 90% of theapproved allocation was the ceiling limit under the earlier scheme, which couldnot be enhanced any further under the schemes which were prevalent earlier aswell as the new scheme. However, under the new scheme the budgetary allocationshave been substantially increased in comparison to the allocation prevalent atthe time of the filing of the petition. Over the years the number oforganisations receiving aid have gone up. It is also submitted that since statehas limited resources and private organisations are capable of raising their ownresources, unnecessary burden should not be imposed upon the Respondent. It isalso submitted that the Respondent has never questioned the desirability orentitlement to higher honorarium of the personnel employed by the NGOs.

11.The respondents further submit that, in any event, the qualificationsprescribed for employees of voluntary organisations are more relaxed whencompared to Government institutions and institutions such as NIVH. In NIVHthere are specific requirements relating to various aspects such as the numberof posts in the organisation; scale of pay; whether the post is a selection postor a non-selection post; age limit for direct recruitment; method ofrecruitment; educational qualification for direct recruitment; experiencerequired for direct recruitment etc. In clear contradistinction, the schemesunder which the grants-in-aid are given to the voluntary organisations do notcontemplate or provide any rules for recruitment of finalisation of pay scalesfor the personnel of such organisations. Therefore, there can be no parity inposts or in pay. Further, having agreed to abide by the terms and conditions ofthe scheme, and having obtained an advantage under the same, it is no longeropen to the petitioner to question the norms of assistance under the scheme.

12.From the record, it appears that the qualifications/ experience required for teachers /employees of NIVH/Government schools were also higher than those laiddown for a voluntary organisations. We may reproduce hereinbelow the compositeposition extracted from Annexure P-4 to the writ petition, which is as follows:

Sl. No.Name of the postQualification fixed by Welfare Ministry for voluntary organizationsQualification fixed by N.I.V.H.1.Braille InstructorGraduate from recognized University. Sound knowledge of Braille.Degree from a recognised Indian or Foreign University (relaxable in the case ofblind candidates otherwise well qualified. Sound knowledge of Bharati andStandard English Braille including the ability to read and write fluentlyEnglish and at least one Indian language.2 years teaching experience.2.Mobility Training InstructorDegree/Diploma/ Certificate in Orientation of MobilityFormal Training from and institute of repote and 3 years experience of work withthe blind.3.Typing Instructor/ Vocational InstructorMatriculation or equivalent Certificate course in related trade.Matriculation or equivalent examination.Typing speed in English of 40 words per minute.Typing speed in Hindi 30 words per minute.2 years experience of teaching Hindi and English Typewriting.4.Teacher/Trained Graduate TeacherDegree from a recognized University.Decree in Teaching of Handicapped.Graduate in Art/Science/Sanskrit (according to the nature of vacancy).Diploma in Teaching or Equivalent 2 years experience as teacher preferably inany institution for the blind, or Diploma in Teaching the Blind.Knowledge of Bharati and Standard English Braille (Visually Handicapped no bar)5.Junior Teacher/ Asstt. TeacherMatric.Diploma in Teaching or Handicapped.High School, Higher Secondary School or equivalent.Junior Training Certificate or equivalent or Montessorie trained.2 years experience as a teacher.Diploma or Certificate in Teaching the Blind.6.CookExperience in CookingThorough knowledge of cooking Vegetarian and Non-vegetarian meals.At least 3 years experience in cooking.7.Braille Shorthand Instructor (Hindi)/ Braille InstructorA good Bachelor's Degree (relaxable in the case of candidates otherwise wellqualified)Thorough knowledge of Bharati Braille.Hindi Braille Shorthand speed 80 w.p.m.2 years teaching experience of Hindi Braille Shorthand in a reputableInstitution.8.Music Instructor/ Music TeacherSound knowledge of vocal and Instrumental Music and ability to teach.Decree or Diploma in Music.9.Chokidar/ WatchmanNo qualification is required10.SweeperNo qualification is required11.AyaMatriculation/ Hr. Sec.

13. The additional affidavit dated 06.02.1997 filed by the petitioner gives thedifference in the pay in respect of different categories of staff in thepetitioner organisation and in the corresponding governmental organisations.There is no doubt that the governmental pay/pay scales are higher than thosepaid by the petitioner. The question is, can the petitioner demand as a matterof an enforceable right that the respondents provide the grants-in-aid to theextent that the petitioner is able to pay the same scale of salary and otherallowances, such as DA, HRA etc. as is admissible to personnel employed inGovernment Organisations/Autonomous Organisations such as the NIVH. Both sideshave relied upon a few decisions which shall be dealt with presently.

14. Having considered the submissions of the parties, we are not inclined toagree with the aforesaid submission of the petitioners. Firstly, we may note that the employees of the petitioner organisation are not the employees of theGovernment. The two employer being distinct, resort to Article 14 to seekparity of pay is, therefore, misconceived. Admittedly, the educational qualifications and experience for the various posts prescribed by the Government for institutions established, run and managed by it or for autonomous organisations such as the NIVH are higher than those prescribed for similarposts in the NGOs/voluntary organisations such as the petitioner. It is settled law that even where the employer is the same, to be able to seek pay parity onthe principle of ?equal pay for equal work?, one of the essential ingredientsthat is required to be met is that the educational qualifications/experience prescribed in the similar posts are the same. Since this condition is not met,this is another reason why the employees of the petitioner organisation cannotseek pay parity with the employees of Government established, run and managedschools and of autonomous institutions. Reference may be made to the decisionof the Supreme Court in ?S.C. Chandra v. State of Jharkhand? (2007) 8 SCC 279.In CA Nos.6595, 6602-03 and 6601 of 2005, the writ petitioners-appellant, whowere serving as secondary school teachers in a school sought parity in their payscales with pay scale of Government secondary school teachers or with Grade-Iand Grade-II Clerks of Bharat Cooking Coal Limited (BCCL). They also soughtfacilities such as provident fund, gratuity, pension and other retiral benefitsand also prayed that the State Government should take over the management ofRamkanali School under the provisions of the Bihar Non-Government SecondarySchools (Taking Over the Management and Control) Act, 1981. The BCCL contestedthe aforesaid claims on the ground that the said school was not owned by BCCL.It was run by a managing committee. The petitioners were not appointed by BCCLand were not employees of BCCL. BCCL used to release the non-recurring grantsto the privately managed schools on the recommendations of the welfare committeesubject to certain conditions. This non-recurring grant and aid did not makethe school a part of the management of BCCL and any teacher in such privatelymanaged school could not be said to be a employee of BCCL thereby entitling himto all benefits as are available to regular employees of BCCL.

15. From the aforesaid, it would be seen that the factual background in S.C.Chandra (supra) was quite similar to the one in hand. The Supreme Courtdismissed the appeal preferred by the petitioner-appellant S.C. Chandra, againstthe decision of the Division Bench of the Jharkhand High Court. There are twoconcurring judgments, one rendered by A.K. Mathur, J. and the other by MarkandeyKatju, J. In his decision A.K. Mathur, J. observed:?

11...................................... Firstly, the school is not beingmanaged by the BCCL as from the facts it is more than clear that the BCCL wasonly extending financial assistance from time to time. By that it cannot besaddled with the liability to pay these teachers of the school as being paid tothe clerks working with BCCL or in the Government of Jharkhand. It isessentially a school managed by a body independent of the management of BCCL.Therefore, BCCL cannot be saddled with the responsibilities of granting theteachers the salaries equated to that of the clerks working in BCCL.
12. Learned counsel for the appellants have relied on Article 39(d) of theConstitution. Article 39(d) does not mean that all the teachers working in theschool should be equated with the clerks in the BCCL or Government of Jharkhand.For application of the principle of equal pay for equal work. There should betotal identity between both groups i.e. the teachers of the school on the onehand and the clerks in BCCL, and as such the teachers cannot be equated with theclerks of the State Government or of the BCCL. The question of application ofArticle 39(d) of the Constitution has recently been interpreted by this Court inState of Haryana and Ors. v. Charanjit Singh and Ors. [(2006) 9 SCC 321] whereintheir Lordships have put the entire controversy to rest and held that theprinciple, 'equal pay for equal work' must satisfy the test that the incumbentsare performing equal and identical work as discharged by employees against whomthe equal pay is claimed. Their Lordships have reviewed all the cases bearing onthe subject and after a detailed discussion have finally put the controversy torest that the persons who claimed the parity should satisfy the court that theconditions are identical and equal and same duties are being discharged by them.Though a number of cases were cited for our consideration but no useful purposewill be served as in Charanjit Singh (supra) all these cases have been reviewedby this Court. More so, when we have already held that the appellants are notthe employees of BCCL, there is no question seeking any parity of the pay withthat of the clerks of BCCL.?

16.Markandey Katju, J. in his concurring view takes note of various otherdecisions of the Supreme Court including the decision in ?State of Haryana v.Tilak Raj? (2003) 6 SCC 123, ?State of Haryana and Ors. v. Charanjit Singh andOrs.? (2006) 9 SCC 321, wherein it has been held that the principle of ?equalpay for equal work? can be invoked only if there is a complete and wholesaleidentity between two groups and that even if the employees of the two groups aredoing identical work, they cannot be granted equal pay, if there is no completeand wholesale identity. The two groups of employees may be doing the same work,yet they may be given different pay scales if the educational qualifications aredifferent or if the nature of job, responsibilities, experience, method ofrecruitment etc. are different. His Lordship proceeded to hold that: -?
13............... fixing pay scales by Courts by applying the principle ofequal pay for equal work upsets the high Constitutional principle of separationof powers between the three organs of the State. Realizing this, this Court hasin recent years avoided applying the principle of equal pay for equal work,unless there is complete and wholesale identity between the two groups (andthere too the matter should be sent for examination by an expert committeeappointed by the Government instead of the Court itself granting higher pay).
14. It is well settled by the Supreme Court that only because the nature of workis the same, irrespective of educational qualification, mode of appointment,experience and other relevant factors, the principle of equal pay for equal workcannot apply vide Government of West Bengal v. Tarun K. Roy and others, (2004) 1SCC 347.?

17.In fact, what the petitioner is seeking is the enhancement of the grant-in-aid provided by the Government. The Government is granting aid which, interalia, covers upto 90% of the approved expenditure incurred by the voluntaryorganisations towards the basic salary paid to the staff. The voluntaryorganisations have to meet the remaining expenditure incurred, inter alia,towards the salary of the staff from out of its own resources. This policy ofthe government merely lays down a reasonable formula evolved by the Government to arrive at the figure of grant-in-aid that it would provide to an organisationunder its scheme. It is open to the voluntary organisations to pay from its own resources to its staff not only the balance 10% basic salary, but also othercomponents such as DA, HRA, CCA, Gratuity etc. There is no prohibition against the voluntary organisations making payment to its staff of the aforesaid components over and above the payment of the basic salary.18.It is to be borne in mind that the Government has come out with variousschemes from time to time to encourage voluntary organisations/NGOs to undertake social causes, such as providing educational and vocational support to the disabled. The funds allocated by the Government are distributed amongst the various organisations, which are being managed independently, in order tofulfill its obligation to provide support to the disabled. It is for the Government to evolve its policy with regard to the extent of assistance that itmay render to voluntary organisations/NGOs. Such policies are devised keepingin view the availability of resources, the number of organisations deserving ofassistance, and other relevant factors. It is for the Government to evolve thecriteria on the basis of which the grants are to be disbursed. Of course, thecriteria has to be reasonable and cannot be arbitrary or discriminatory. Itcannot be said that the criteria fixed by the Government for disbursement ofgrant-in-aid, inter alia, being 90% of the basic salary of the staff of thevoluntary organisations/NGO is discriminatory or arbitrary. It is not thepetitioner's case that it has been discriminated against in the matter ofdisbursement of grant-in-aid when compared to any other similar organisation.The petitioner organisation cannot seek to compare itself with Government run schools and institutions such as the NIVH for the simple reason that Government run institutions and NIVH are wholly established, managed and run by the Government by following a transparent mechanism governed by a set of rules with regard to the number of sanctioned posts, the recruitment rules prescribing educational qualifications and experience criteria for such posts, the method of recruitment, discipline and conduct rules and the like, whereas the institutions run by the voluntary organisations/NGOs such as the petitioner are entirely established, run and managed by the concerned organisation, which are not bound to follow any set of rules, as aforesaid. The criteria fixed by the Government for disbursement of grant-in-aid can also not be said to be arbitrary. The object of grant-in-aid is not to meet the entire expenditure of the organisation under any particular head, but to provide financial assistance to the extent theresources of the Government permit.

19.We are not dealing with the question, whether the disparity in theeducational qualifications, which were prescribed by the Ministry of Welfare, isreasonable or not. That is not the challenge before us. The petitioner is notseeking parity in the prescription of educational qualifications/experiencerequirements or the recruitment rules in this petition.

20.Reliance placed on Clause 12.3 of the ?Scheme of Integrated Education for theDisabled Children 1992?, which states that the same scales of pay as availableto the teachers of the corresponding category in the State/UT will be given tospecial teachers, appears to be misplaced. Clause 4 of the same scheme showsthat the scheme makes a conscious distinction between State Government/UTAdministration/Autonomous Organisations of stature on the one hand, andvoluntary organisations on the other hand. While the scheme is to beimplemented though the State Governments/UT Administration/AutonomousOrganisations, the assistance of voluntary organisations may also be taken toimplement the scheme. The petitioner is a voluntary organisation. The saidscheme is primarily to be implemented by the Governments and by AutonomousOrganisations, and the prescription about salaries pertains to suchorganisations/institutions, and not to voluntary organisations.

21.Mr. P.N. Lekhi, learned senior counsel appearing for the petitioner hasplaced strong reliance on ?State of H.P. v. H.P. State Recognised and AidedSchools Managing Committees and Ors.? (1995) 4 SCC 507 in support of hissubmission. The question raised before the Supreme Court in this decision waswhether recognised and aided private schools were entitled to received grants-in-aid to meet 95% of the net expenditure to enable them to pay to the teachersemployed by them salary equal to that being paid to the counterparts of suchteachers in Government schools. The Supreme Court answered this question in theaffirmative i.e. in favour of the teachers seeking parity. The Court struckdown the maximum limit of grant-in-aid fixed by the Government in pursuance ofthe powers under Rule 47(2) of the Himachal Pradesh (Grant-in-Aid) Rules, whichprescribed a maximum limit on the amount of admissible grant-in-aid. On theface of it this decision appears to support the submission of Mr. Lekhi.However, on a deeper scrutiny one finds material differences in the facts andcircumstances of that case that the facts of the present case. The SupremeCourt while arriving at its decision took note of the fact that the CentralGovernment had appointed Kothari Commission to examine the service conditions ofthe teachers with the object of improving the standard of education in thecountry. Kothari Commission had, inter alia, recommended that the scales pf payof school teachers working under different managements such as government, localbodies or private management should be the same. Almost all the States in thecountry including the State of Himachal Pradesh had agreed to implement therecommendations of the Kothari Commission. The State of Haryana had alsofollowed the same policy. The State of Himachal Pradesh had framed theHimachal Pradesh (Grant-in-Aid) Rules in conformity with the recommendations ofthe Kothari Commission and Rules 45-Q and 45-J of the said Rules read asfollows:
?45-Q. Management shall introduce such scales of pay and allowances forteachers and to other staff members as are prescribed by the Government forcorresponding staff in government schools.45-J. That the income from subscription, endowments and other sources(excluding fees) suffices to ensure that the management can contribute at least5 per cent of the net expenditure from their own funds after the school isaided.?

22. Because of the aforesaid Rules, the Supreme Court held that the State ofHimachal Pradesh was committed to implement the Kothari Commissionrecommendations regarding parity in the pay scales of the teachers working inGovernment schools and the aided schools. The Government order passed underRule 47(2) of the Himachal Pradesh (Grant-in-Aid) Rules, which fixed the maximumlimit of the grant-in-aid to be provided to the aided schools, however, came inthe way of compliance of Rules 45-Q and 45-J, as aforesaid. The Court enforcedthe obligation of the State under Rules 45-Q and 45-J and as also theconstitutional obligation of the State to provide free education to childrentill they complete the age of 14 years and quashed the imposition of maximumlimit for the disbursement of grants-in-aid to the aided schools as beingarbitrary and unjustified. In the course of its judgment in paragraphs 8 and 9the Supreme Court noted as follows:?8. The aided schools teach the same syllabus and curriculum, prescribethe books and courses as per Government directions and prepare the students forsame examinations for which the students studying in government schools areprepared. The qualifications of the teachers are prescribed by the StateGovernment and the appointments are made with the approval of the StateGovernment. The fees levied and concessions allowed are strictly in accordancewith the instructions issued by the Education Department of the State Governmentfrom time to time. The Managing Committees of aided schools are approved by theState Government and two members of the Committee are appointed by the EducationDepartment. The service conditions of the teachers including disciplinaryproceedings and award of punishment etc. are governed by the Rules framed by theState Government.9. It is, thus, obvious that the State Government has a deep and pervasivecontrol on the aided schools. The government schools and the aided schools ?specially after the Kothari Commission Report ? have always been treated on apar...................................?(emphasis added)

23.The aforesaid extract highlights the difference in factual background in thesaid case from the facts of the present case. Unlike in the said case, thequalifications of the teachers prescribed for voluntary organisations and thoseprescribed for Government Organisations/Autonomous Institutions are remarkablydifferent. The appointments made by voluntary organisations do not require theapproval of the State Government. The fees levied or concessions allowed by thevoluntary organisations are not fixed under the instructions of the Government.The Government apparently has no role to play in the management of the voluntaryorganisations. The service conditions of the teachers including disciplinaryproceedings and award of punishment to the employees of voluntary organisationsare not governed by the rules framed by the State Government. It cannot be saidthat there is governmental control, much less a deep and pervasive control, onthe institutions run by voluntary organisations such as the petitioner.Therefore, this decision is of no avail to the petitioners. The decision of theSupreme Court in ?State of Punjab and Ors. v. Om Parkash Kaushal and Ors.?(1996) 5 SCC 325 relied upon by the petitioners is of no avail. In fact thisdecision supports the view that we are taking. With effect from 1.12.1967, onthe basis of the Kothari Commissions recommendation the pay scales of theteachers of the privately managed aided schools were revised and brought at parwith the teachers of the same status in the government service. The Punjablegislature enacted the Punjab Privately Managed Recognised Schools, Employees(Security of Service) Act, 1979. Section 7 of the said Act granted parity to theprivate teachers in the matter of scales of pay and Dearness Allowance with theGovernment teachers. This act came into force on 23.01.1981. Prior to thatunder executive instructions the teachers employed in privately managed aidedschools in the State of Punjab were given parity with Government teachers onlyin respect of pay scales and Dearness Allowances. The other conditions of service relating to the Government teachers were not extended to such teachersof privately managed government aided schools. In the year 1960, the Government issued instructions whereunder teachers with masters degree working in government schools, who had acquired qualifications of M.A./M.Sc./M.D. (thirddivision) became entitled to one increment, and those who acquired the saidqualification with first division and second division, became entitled to threeincrements. Subsequently in the year 1979, the Government withdrew the 1960instructions. The existing recipients of such benefits were, however, spared.The teachers of privately managed aided schools in the State of Punjab sought parity regarding pay scales and Dearness Allowances between private schoolteachers and Government teachers since 01.12.1967, on the ground that they had acquired the higher qualification prior to 1979, in terms of 1960 instructions.The Supreme Court rejected this contention on the ground that Section 7 of theaforesaid Act, which granted parity to private school teachers and teachers ofGovernment aided schools in the matter of scales of pay and Dearness Allowances with Government school teachers came into force only on 23.01.1981. Prior tothat, under executive instructions the teachers of privately run aided schoolswere given parity with Government teachers only in respect of pay scales and Dearness Allowances, and other conditions of service relating to the Government teachers were not extended to the respondents. In the present case, thepetitioners have not been able to show any provision of law which mandates thatit is the obligation of the State to pay the same salary to the teachers of voluntary organisations, working to educate the disabled and handicapped with the teachers working in Government schools and Autonomous Institutions.

24. The decision of the Supreme Court in ?State of U.P. and Anr. v. U.P.Polytechnic Diploma Shikshak Sangh and Anr.? (2001) 10 SCC 643 also relied uponby the petitioner also does not advance the case of the petitioners. The said decision is a short order, which merely applies its earlier decision in State ofH.P. (supra) to grant relief to the Assistant Lecturer in Government aided polytechnics, by holding that they would be entitled to the same scales asgranted to the Assistant Lecturers in Government polytechnics. Since we have distinguished the aforesaid decision in State of H.P. (supra), even thisdecision is of no avail to the petitioners.

25.The decision of the Supreme Court in ?State of Haryana and Ors. v. ChampaDevi and Ors.? (2002) 10 SCC 78 relied upon by the petitioners also is of noavail. This decision also goes contrary to the submission of the petitioners.While noticing that teachers of privately managed aided schools are entitled tothe same scale of pay and Dearness Allowances as teachers of Government schools,when it came to dealing with the other claims of the teachers of privatelymanaged aided schools which had been extended to Government employees undervarious circulars, the Supreme Court held that the High Court had committed anerror in granting those benefits to the employees of private aided schools. TheSupreme Court relied on its decision in Om Parkash Kaushal (supra), wherein theCourt had examined the question as to what is the meaning of ?parity inemployment? and came to the conclusion that all the incentives granted toemployees of Government cannot be claimed as a matter of right by the employeeunder private management, as that would not be within the expression ?parity inemployment?. The Court held that the scale of pay and Dearness Allowancegranted to a Government servant or to a teacher of a Government school can beclaimed as a matter of right by the teachers of a private aided school, but notthe other incentives which the government might confer on its employees.Applying the same principle, it cannot be said that the petitioners are entitledto claim parity with Government teachers or teachers in Autonomous Institutions.

26.In Haryana State Adhyapak Sangh and Ors. Etc. v. State of Haryana and Ors.,AIR 1988 SC 1663, the Supreme Court, while declining to go into the claim ofother benefits like HRA, CCA etc., directed the respondents to evolve a schemeto bring about parity between the teachers of aided schools and teachers ofGovernment schools having regard to various allowances. However, the Courtrefused to grant such allowances to the teachers of aided schools, till such ascheme was in place. But with regard to the scale of pay and DA the courtunequivocally indicated that the teachers of aided schools must be put on thesame pedestal as their counterparts in the Government schools.

27.It seems that when it comes to the question of parity in pay scales and allother benefits like DA, HRA, CCA etc. the deciding factor is whether suchscales of pay and allowances have been expressly provided for by the rules andregulations. In case they have been provided for, then, the Courts have ruledin favour of parity to the extent of such pay scales and allowances beingprovided for. However, when such scales of pay and allowances have not beenprovided for, like in the cases of Haryana State Adhyapak Sangh (supra) and OmPrakash Kaushal (supra), the Court has either asked the concerned parties tocome up with a scheme solely for the purpose of bringing about parity in pay, orhave simply refused to allow parity between the allowances which have beenprovided for and the ones which have not been provided for. However, in thepresent case, since the posts are not at par in view of the difference inqualification for appointment etc. this question may not even arise fordetermination.

28.The decision of this Court in ?Bimla Rani and Ors. v. Appellate AuthorityEqual Remuneration Act, 1976 and Ors.? 113 (2004) DLT 441 relied upon by thepetitioners also does not serve the cause of the petitioners. That was a casedealing with employment under the same employer. A lady employee who had earlierbeen enlisted amongst the male employees and was being given a higher salary,was subjected to reduction of her pay when it was realised that she was a lady.The said action was challenged by the petitioner Bimla Rani by placing relianceon Section 7(1)(b) of the Equal Remuneration Act, 1976. The facts of that caseare not similar to the facts of the present case and even the principle of lawinvoked in that case has no application to the present case. Lastly, Mr. Lekhiinvoked the principle of legitimate expectation. He submitted that thepetitioner and its employees have legitimate expectation that they would be disbursed grants-in-aid by the Government so that the employees of thepetitioner could be paid salary and allowances at the same rate at which theircounterparts in the Government and autonomous bodies are being paid, since theyare discharging the same nature of duties. He relies on ?U.P. Avas Evam VikasParishad v. Gyan Devi (dead) by LRs and Ors.? (1995) 2 SCC 326, wherein theissue before the Supreme Court was whether a local authority/company, for whose purpose land is being acquired, has a right to appear and adduce evidence inproceedings before Collector and the reference Court for determination of compensation. In paragraph 41 of the said decision (in the judgment R.M. Sahai,J.) the Supreme Court observed: -?In situations where even though a person has no enforceable right yet he isaffected or likely to be affected by the order passed by a public authority thecourts have evolved the principle of legitimate expectations. The expression which is said to have originated from the judgment of Lord Denning in Schmidt v.Secy. of State for Home Affairs (1969) 2 Ch. 149 is now well established in public law. In Attorney-General of Hong Kong v. Ng Yuen Shiu (1983) 2 A.C. 629Privy Council applied this principle where expectations were, ?based upon some statement or undertaking by or on behalf of, the public authority?, and observed:?Accordingly 'legitimate expectations' in this context are capable of including expectations which go beyond enforceable legal rights, provided they have some reasonable basis'. 'A person may have a legitimate expectation of being treatedin a certain way by an administrative authority even though he has no legalright in private law to receive such treatment? Halsbury's Laws of England, 4thEdn., Vol. 1 (1), re-issue para 81.?

29. We are afraid, we cannot agree with this submission of the petitioner. The principle of legitimate expectation has no application in the facts of this case. The respondents, while granting aid to the petitioners had in no uncertainterms made it clear that the grant-in-aid would, inter alia, include 90% of the expenditure incurred by the voluntary organisations towards salaries of thestaff employed by such organisations and as approved by the Government. There was no ambiguity in the representation made by the Government that 90% of theapproved expenditure is the maximum aid that the Government would provide andunder the schemes it was also made clear that the voluntary organisations should be in a position to meet the remaining expenditure from out of its own accruals and collections. It cannot, therefore, be said that the petitioners entertained a legitimate expectation towards receiving higher grants from the Government tobe able to pay to its employees, higher salaries or other allowances at par with those admissible to Government employees/teachers and employees of autonomous institutions such as the NIVH.

30. Under the "Scheme of Assistance to Voluntary Organisations for Special Schools for Handicapped Children", the teachers and the staff of the specialschool were paid a consolidated salary and it was expressly clarified that noscale of pay and other allowances would be admissible. Under the "Scheme toPromote Voluntary Action for Persons with Disabilities", the consolidated salarywas replaced by a fixed honourarium. Nowhere in the above schemes has other allowances like DA, HRA, CCA etc. found express mention. On the other hand, we find that at the time of filing of the petition, the pay scales were not onlycomparable but in some cases, the teachers employed by the voluntary organisations received a higher pay scale than their counterparts employed bythe Government. Whatever be the case, since emoluments such as DA, HRA, CCAetc. have not been provided for in the present case, we rely on the judgmentsthat we have cited during our deliberations and, therefore, we do not find anymerit in the case of the petitioners.

31.Therefore, we are of the view that the teachers/employees of the petitioner cannot enjoy parity in pay-scales if the educational qualifications required aredifferent, regardless of whether the duties and the responsibilities areidentical.

32.For the aforesaid reasons, we see no merit in this petition and dismiss thesame leaving the parties to bear their own respective costs.

VIPIN SANGHI JUDGE

Friday, July 18, 2008

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.

Saturday, July 5, 2008

Chennai High Courts finaly delivered its judgement on Rajiv Rajan's Case against Min. of Civil Aviation

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.

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

QUOTE

In the High Court of Judicature at Madras

Dated: 30-06-08

Coram:

The Honourable Mr. Justice P.K.MISRA
And
The Honourable Mr. Justice M.SATHYANARAYANAN

Writ Petition No.23379 of 2007

1.Mr. L.K.Venkat

2. Rajiv Rajan ..Petitioners

Versus

The Ministry of Civil Aviation
Chennai Airport,
Mennambakkam, Chennai.

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

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

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

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

Director General of Civil Aviation
Opposite to safdurjung Airport
New Delhi
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 kProgrammes 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

Tuesday, June 17, 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

Wednesday, January 4, 2006

On acquiring disability, last drawn pay of the employee shall be protected- Allahabad HC

Judgement in Civil Misc. Writ Petition No. 2229 of 2004 titled Union of India & Ors vs. Mohd. Mobin Khan & Anr.


HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR
Court No. 34
Civil Misc. Writ Petition No. 2229 of 2004

Union of India & Ors,.
Vs.
Mohd. Mobin Khan & Anr.

Bench:
Hon. Dr. B.S. Chauhan, J.
Hon. Dilip Gupta, J.


This writ petition has been filed for quashing the order dated 30th April, 2003 passed by the Central Administrative Tribunal in Original Application No. 164 of 1999 filed by Mohd. Mobin Khan (hereinafter referred to as the ''Applicant'). The Original Application had been filed for quashing the order dated 1st February, 1999 by which the applicant was given compulsory retirement under Rule 38 of CCS (Pension) Rules on the ground of disability and a direction was also sought to appoint the applicant in the same pay-scale as Assistant Foreman or Store Superintendent.


The applicant was initially appointed as an ad hoc Helper in October, 1969 under the Central Ground Water Board Division-III Varanasi. He was subsequently regularized and was granted promotions from time to time. While he was holding the post of DCM at Varanasi, he met with an accident on 21st February, 1995 as a result of which he was hospitalized. His left leg was amputated and he also lost vision in the right eye. He was ultimately discharged from the hospital on 3rd August, 1996 with a fitness certificate for doing light duty and sitting job. He was also referred to the Chief Medical Officer of the S.S.P.G. Hospital Varanasi by the employees for medical examination. The Medical Board of the said Hospital issued a certificate dated 23rd October, 1997 that the applicant was fit to perform duties like writing, maintenance of submission of report, maintenance of log books and store account books etc. The Department considered the case of the applicant and retained him in service on clerical post in the grade of LDC only. The terms indicated in the letter dated 5.1.1998 are as follows:-


"Shri Mobin Khan, DCM of this Division has been declared unfit for technical work by the medical authority. However, his case has been considered sympathetically by the competent authority of the Board to be retained in service on Clerical post in the grade of L.D.C. only.


"Shri Khan is directed to submit his willingness for appointment to the post of L.D.C. subject to the following conditions:-

1. He will be treated as a fresh recruit.
2. He will be treated as a junior person in the grade of L.D.C.
3. His past services will be counted for pensionery and allied benefits.

His willingness for the post of LDC must reach the office of the undersigned within seven days from the receipt of this O.M.

Further, in the event of his unwillingness for the post of LDC, he can not be continued in the post of DCM and he will have to be retired from Govt. service on invalid pension."

The applicant joined as LDC but made a representation to the Authorities to protect his pay by retaining him in service as Store Superintendent/Store Foreman on the ground that he was educationally and otherwise competent to hold that post. However by the letter 21st July 1998, the applicant was informed that his pay cannot be protected and if he did not accept the terms indicated in the letter he would be retired on ground of disability. The applicant again made a request for pay protection so that he could support his family but the Department issued the order dated 1st February, 1999 by which applicant DCM was retired from Central Ground Board Division-III Varanasi, under Rule 38 CCS (Pension) Rules as he failed to accept the post of LDC.


It is this order that was challenged by the applicant before the Tribunal with a prayer for a further direction for pay protection. The Tribunal by means of the impugned judgment quashed the order dated 1st February, 1999 and issued the following directions:-


(i) The applicant will be reinstated as LDC in case he gives his willingness within a month of the communication of this order protecting his last pay drawn by grant of personal pay.
(ii) In case the applicant gives his willingness and joins as LDC the applicant shall be entitled for 50% of the wages for the period from 01.02.1999 to the date of reinstatement. Such pay shall be granted after deducting the pension and other allowances already drawn. The period referred to above shall be counted for pension purposes.
(iii) The post retiral benefits already granted to the applicant in the shape of D.C.R.G., leave encashment etc., shall be adjusted from the post retiral benefits which would accrue to the applicant at the time of his superannuation.

We have heard Sri Bhoopendra Nath Singh, learned counsel for the petitioners and Sri N.A. Khan, learned counsel appearing for the respondents.


Learned counsel for the petitioners submitted that last pay of the applicant cannot be protected in view of the provisions of Rule 22 of the Fundamental Rules and, therefore, the directions issued by the Tribunal were bad in law. He further submitted that the injury had not been caused to the applicant "during the course of employment" and, therefore, there was no obligation on the part of the petitioners to engage the applicant or protect his pay and that the order of retirement was justified as the applicant did not accept the terms as were required under the communication dated 21st July, 1998. Another submission was made that as the petitioner had received compensation for the loss suffered on account of accident as per the order of the Compensation Commissioner, Varanasi, the order of the Tribunal was not justified.


Learned counsel appearing for the applicant/respondent, however submitted that there was no infirmity in the judgment of the Tribunal and in any view of the matter the last pay paid to the petitioner had to be protected in view of the provisions of Section 47 of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the ''Disabilities Act'). He further submitted that the applicant had suffered injury during the course of employment and that Rule 22 of the Fundamental Rules or the receipt of any compensation under the Workmen Compensation Act cannot debar the applicant from claiming the relief under Section 47 of the Disabilities Act.


We have carefully considered the averments advanced by the learned counsel for the parties and have perused the materials available on record.


A perusal of the Original Application filed by the applicant before the Tribunal indicates that the work of the applicant related to field work and on 21st February, 1995 after completing the tubewell work, the applicant with his companion was returning back in a truck when unfortunately the accident took place and he was admitted in the Hospital. It was on 3rd of August, 1996 that he was discharged and a fitness certificate was given to him. The applicant was also ordered to be examined by the Chief Medical Officer who had also issued the certificate. It is on a consideration of these reports that the applicant was retained in service on the clerical post in the grade of LDC subject to certain conditions and when the applicant insisted that he should be retained as Store Superintendent/Store Foreman and his pay should be protected, he was retired from service w.e.f. 1st February, 1999.


It is true that persons with disability can now avail of the benefits provided under the Disabilities Act but even prior to its enforcement with effect from 1st January 1996, the Constitution provided remedy and relief to the persons with disability when their rights were violated or denied.


The fundamental right to equality under Article 14 of the Constitution of India which states that "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India", is important for this purpose. It implies that only equals must be treated as equals and unequals may not be treated as equals which makes it the constitutional responsibility of the State to ensure that the systemic and historical conditions of disadvantaged classes of persons are taken into account in providing equal status and equal opportunities. Simply put, this notion of equality means that the laws may not have universal application for all persons who are not by nature, attainment, historical reasons or any other circumstance, in the same position and hence, the varying needs of different classes of persons may require separate treatment - the only condition being that the classification for separate treatment should be rational and must further the objective of that law and be linked with it. The right of the persons with disabilities, against any discrimination, which is on the basis of disability of the person, is therefore, within this mandate of Right to Equality under Article 14 of the Constitution of India. It is under this constitutional mandate of equality that even before the Disability Statutes were passed, many persons with disabilities, their organizations or petitioners in public interest approached the Courts for their right to equality and right against arbitrary discrimination.
To illustrate, we may refer to the decision of Hon'ble Supreme Court in National Federation of Blind Vs. Union Public Service Commission, AIR 1993 SC 1916. The Writ Petition was filed against discrimination of visually impaired persons in competing for the coveted civil services of the country, and for the government to be directed to permit otherwise qualified blind candidates to appear in the selection examination. The Supreme Court not only allowed the petition, but also directed the government to allow them to write the examination in Braille or with the help of a scribe. The Supreme Court also responded to the Writ Petitions filed under Article 32 of the Constitution of India, against the treatment meted out to persons with mental disabilities in institutions for their care and treatment and laid down guidelines on their living conditions, education, training and rehabilitation facilities in such institutions. In this connection, reference may be made to the following decisions: Rakesh Chandra Narayan Vs. State of Bihar, AIR 1989 SC 348, B.R. Kapoor Vs. Union of India, AIR 190 SC 662; Veena Sethi Vs. State of Bihar & Ors,. (1982) 2 SCC 5833 and Sheela Barse Vs. Union of India (1993) 4 SCC 204.


Article 21 of the Constitution also protects the rights to livelihood as an integral facet of right to life and persons with disability were given protection under this Article of the Constitution. In this context reference may be made to the famous case of Narendra Kumar Chandla Vs. State of Haryana & Ors,. (1994) 4 SCC 460 which was decided by the Hon'ble Supreme Court prior to the enforcement of the Disabilities Act. This was a case of a Sub-Station Attendant of the Haryana State Electricity Board in the pay scale of Rs.1400-2300 who unfortunately had to be operated in Tata Memorial Hospital, Bombay and was thereafter discharged but his right arm was completely amputated. The Electricity Board absorbed him as Carrier Attendant in the lesser pay scale of Rs.825-1300. Feeling dissatisfied, he approached the High Court but his petition was dismissed. The Supreme Court while granting relief of protection of last pay scale observed :-


"Article 21 protects the right to livelihood as an integral facet of right to life. When an employee is afflicted with unfortunate disease due to which, when he is unable to perform the duties of the posts he was holding, the employer must make every endeavour to adjust him in a post in which the employee would be suitable to discharge the duties. Asking the appellant to discharge the duties as a Carrier Attendant is unjust. Since he is a matriculate, he is eligible for the post of LDC. For LDC, apart from matriculation, passing in typing test either in Hindi or English at the speed of 15/30 words per minute is necessary. For a Clerk, typing generally is not a must. In view of the facts and circumstances of this case, we direct the respondent Board to relax his passing of typing test and to appoint him as an LDC. Admittedly on the date when he had unfortunate operation, he was drawing the salary in the pay scale of Rs. 1400-2300. Necessarily, therefore, his last drawn pay has to be protected. Since he has been rehabilitated in the post of LDC we direct the respondent to appoint him to the post of LDC protecting his scale of pay of Rs. 1400-2300 and direct to pay all the arrears of salary." (emphasis supplied)

We must make reference to two other cases of the Hon'ble Supreme Court delivered prior to the enforcement of the Disabilities Act. In Anand Bihari & Ors. Vs. Rajasthan State Road Transport Corporation, Jaipur & Anr., AIR 1991 SC 1003, the Hon'ble Supreme Court examined the question whether a State Road Transport Corporation can retire the bus drivers on the ground of their defective or sub-normal eyesight developed during the course of the employment. The Court held that termination of service was unjustified, inequitable and discriminatory. It was impressed by the Supreme Court that service conditions of the bus drivers must provide adequate safeguards since such bus drivers developed defective eyesight or sub-normal eyesight because of the occupational hazards. A scheme was directed to be framed for providing alternative jobs along with the retirement benefits and for payment of additional compensation proportionate to the length of service rendered by them, in case of non-availability of jobs.


In the case of Rameshwar Dass & Anr. Vs. State of Haryana & Ors., (1995) 3 SC 285, the Supreme Court while considering the aforesaid judgment delivered in the case of Anand Bihari (supra) observed as follows :-


"It appears that some of the appellants suffered serious injuries during the course of their employment which incapacitated them from performing their duties. Initially, they were transferred to lighter duties, but while they were working on those posts, they were retired from service on the ground that they were medically unfit. From the written submission filed on behalf of the respondents before the High Court, it appears that the terminal benefits have been paid to them. If the judgment of this Court in Anand Bihar Vs. Rajasthan State Road Transport Corpn. (1991) 1 SCC 731, is read in its proper context and spirit, then it has to be held that this Court impressed on the State Road Transport Corporation to first provide for alternative jobs to such drivers who have become medically unfit for heavy vehicles. A direction for payment of additional compensation was given only when it is not possible at all in the existing circumstances to provide alternative jobs to such drivers. It need not be pointed out that the authorities of the Corporation should not take recourse only to the payment of the additional compensation without first examining whether such drivers could be put on alternative jobs.


Taking all facts and circumstances into consideration, we direct the respondents to apply their mind properly to the question whether the appellants who have suffered injuries and have become medically unfit can be put to some alternative jobs by way of rehabilitation. The question of payment for additional compensation will arise only when it is not possible to provide alternative jobs to them or some of them."

We may also mention that the First International Forum for Universal Declaration of Human Rights proclaimed by the United Nations General Assembly is a landmark, for Article 25 of the Declaration states that each person has, "the right to security in the event of unemployment, sickness, disability, widowhood, old age, and other lack of livelihood in the circumstances beyond his control. In the year 1971, the General Assembly stipulated that mentally retarded persons be accorded the same rights as other human beings, as well as special rights corresponding to their needs in the medical, educational and social fields; and in 1975 the General Assembly adopted the "Declaration on the Rights of Disabled Persons" which proclaimed equal civil and political rights of disabled persons, and the subsequent adoption of the standard Rules in the equalization of opportunities for Persons with Disabilities in 1993 served as an instrument for policy making and a basis for technical and economic cooperation. The evaluation of these international standards relating specifically to disability reflects on the move to place the rights of persons with disabilities within the category of Universal Human Rights.


It was also realised that the disabled need adequate protection through appropriate Legislation. A meeting to launch the Asian and Pacific Decade of the Disabled Persons 1993-2002 was then convened by the Economic and Social Commission for Asian and Pacific Region. It was held at Beijing on 1st to 5th December, 1992 and it adopted the Proclamation on the Full Participation and Equality of People with Disabilities in the Asia and the Pacific region. India was a signatory to this promulgation and accordingly the Bill was introduced for this purpose and ultimately the Disabilities Act was enacted.
The Statement of object and reasons to the Disabilities Act which was appended to the Bill reads as under:-


"The meeting to launch the Asian and Pacific Decade of the Disabled persons 1993-2002 convened by the Economic and Social Commission for Asian and Pacific Region, held at Beijing on 1st to 5th December, 1992 adopted the proclamation on the Full Participation and Equality of People with Disabilities in the Asia and the Pacific region. India is a signatory to the said proclamation and it is necessary to enact a suitable legislation to provide for the following :-


(i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities;
(ii) to create barrier free environment for persons with disabilities;
(iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, vis-à-vis, non-disabled persons;
(iv) to counteract any situation of the abuse and the exploitation of persons with disabilities;
(v) to lay down a strategy for comprehensive development of programmes and services and equalisation of opportunities for persons with disabilities; and
(vi) to make special provision of the integration of persons with disabilities into the social mainstream.

Accordingly, it is proposed to provide inter alia for the constitution of Co-ordination Committees and Executive Committees at the Central and State levels to carry out the various functions assigned to them. Within the limits of their economic capacity and development the appropriate Governments and the local authorities will have to undertake various measures for the prevention and early detection of disabilities, creation of barrier-free environment, provision for rehabilitation services, etc. The Bill also provides for education, employment and vocational training, reservation in identified posts, research and manpower development, establishment of homes for persons with severe disabilities, etc. For effective implementation of the provision of the Bill, appointment of the Chief Commissioner for persons with Disabilities at the Central level and Commissioners for Persons with Disabilities at the State level clothed with powers to monitor the funds disbursed by the Central and State governments and also to take steps to safeguard the rights of the persons with disabilities is also envisaged."

The Disabilities Act deals with prevention of early detection of disabilities, education, employment, affirmative action, non-discrimination, research and manpower development, recommendation of institutions for persons with disabilities, institutions for persons with severe disabilities, social security and other miscellaneous provisions
Section 47 of the Disabilities Act which is relevant for the purpose of deciding this petition is quoted below:-


" Non-discrimination in Government employment.- (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."

Section 2(k) defines the ''Establishment' to mean a Corporation established by or under a Central Provincial or State, or an authority, or a body owned or controlled or aided by the Government, or a local authority or as defined in Section 167 of the Companies Act, 1956 and it includes departments of a Government. Section 2(i) defines ''disability' to mean blindness, low vision, leprosy-cured, hearing impairment, locomotor disability, mental retardation and mental illness. "Person with disability" has also been defined to mean a person suffering not less than 40% of any disability as certified by a Medical Authority.
It has not been disputed by the learned counsel for the petitioners that the Central Ground Water Board Division is an ''establishment' and that the applicant had acquired disability. The provisions of Section 47 of the Disabilities Act are, therefore, clearly applicable. It provides that no establishment shall dispense with or reduce in rank an employee who acquires disability during his service, provided that, if an employee, after acquiring disability is not suitable for the post he was holding, then he can be shifted to some other post with the same pay scale and service benefits. The intention of Section 47 of the Disabilities Act is very loud and clear that the service of a person who acquires disability during service should not be dispensed with. The purpose is not far to seek as when the objective of the enactment is to provide proper and adequate opportunities to the disabled in the field of education, employment etc., it is obvious that those who are already in employment should not be uprooted merely because they have incurred disability during service. Their service has to be protected if they acquire disability.


Section 47 of the Disabilities Act was comprehensively analysed by the Hon'ble Supreme Court in Kunal Singh Vs. Union of India & Anr. AIR 2003 SC 1623 and it was observed 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 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 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 employer shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing a provision of 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 supplied)

The same view was reiterated by the Supreme Court in Union of India Vs. Sanjay Kumar Jain 2004 AIR SCW 4577 wherein it was held as follows:-
"Sub-section (1) of Section 47 in clear terms provides that there cannot be any discrimination in Government employments and no establishment shall dispense with or reduce in rank an employee whatsoever during his service.

It is, therefore, clear that a person who has acquired disability during his service is sought to be specifically protected under Section 47 of the Disabilities Act, the language of which is clearly mandatory in nature. It is a piece of social beneficial enactment giving the disabled persons equal opportunities, protection of rights and full participation. It can be said that it provides succor to the needy.


We must also not forget that each year 3rd December is celebrated as International Day of Disabled Persons. On 3rd December, 1999, Ministry of Social Justice and Empowerment, Government of India, came out with its policy decisions and welfare measures taken to assuage the feelings of disabled persons. These messages reflect the commitment of Government to strive for the betterment of the disabled persons. It was widely accepted that disabled persons needed to be treated as valued member of the society who can contribute to the development and progress of the country and that they do not need our sympathy or pity but an opportunity to employment. In fact 2002 was declared as the year for the disabled.


It is in the light of the aforesaid observations that we have to examine the contentions advanced by the learned counsel for the parties.


Learned counsel for the petitioners contended that in view of the provisions of Rule 22 of the Fundamental Rules and also in view of the fact that the applicant had received compensation for the loss suffered, there was no occasion to protect his pay. In effect what is sought to be contended is that the applicant had been given advance increment for the number of years of service rendered on the post of DCM while fixing his pay in the grade of LDC as provided for in Fundamental Rule 22 and the said pay could not under any circumstances, exceed the maximum of the scale for the post of LDC. It was, therefore, not possible to place the applicant in the pay scale of DCM.


We shall first deal with the submission relating to payment of compensation. The Hon'ble Supreme Court in the case of Kunal Singh (supra) held that mere grant of invalidity pension cannot be made a ground to deny protection given under Section 47 of the Disabilities Act. It was observed as follows:-


"We have to notice one more aspect in relation to the appellant getting invalidity pension as per Rule 38 of the CCS (Pension) Rules. The Act is a special legislation dealing with persons with disabilities, protection of rights and full participation to them. It being a special enactment, doctrine of generalia specialibus non derogant would apply. Hence Rule 38 of the Central Civil Services (Pension) Rules cannot override Section 47 of the Act. Further Section 72 of the Act also supports the case of the appellant, which reads :-


72, Act to be in addition to and not in derogation of any other law. -- The provisions of this Act, or the rules made thereunder shall be in addition to, and not in derogation of any other law for the time being in force or any rules, order or any instructions issued thereunder, enacted or issued for the benefits of persons with disabilities.


Merely because under Rule 38 of CCS (Pension) Rules, 1972, the appellant got invalidity pension is no ground to deny the protection, mandatorily made available to the appellant under Section 47 of the Act. Once it is held that the appellant has acquired disability during his service and if found not suitable for the post he was holding, he could be shifted to some other post with same pay scale and service benefits; if it was not possible to adjust him against any post, he could be kept on a supernumerary post until a suitable post was available or he attains the age of superannuation, which ever is earlier. It appears no such efforts were made by the respondents. They have proceeded to hold that he was permanently incapacitated to continue in service without considering the effect of other provision of Section 47 of the Act." (emphasis supplied).

The Hon'ble Supreme Court in Kunwar Pal Singh Vs. Delhi Transport Corporation & Ors. Civil Appeal No. 1864/2000 arising out of SLP (C) 7997/99 observed as follows:-
"Learned counsel for the appellant has brought to our attention Section 47 of the Persons with Disabilities (Equal Opportunities etc.) Act, 1995.


Having heard the learned counsel for the parties, we are of the opinion that it is the duty of respondent No.1 to employ the appellant in Class IV post. If no such post exists, then by virtue of Section 47 of the said Act, a supernumerary post shall be created within eight weeks from today and employment given to the appellant with such measures of relief as the appellant with such measures of relief as the appellant may be entitled to."

The Delhi High Court, in Writ Petition No. 5503 of 1999 decided on 13.8.2002 (Shri Dharambir Swaroop Vs. Delhi Transport Corporation), in view of the aforesaid decision of the Supreme Court, observed that it was no more open for the respondent to contend that as the workman had been paid compensation on medical ground and compensation on the ground of disablement, the petitioner was not entitled to reinstatement in view of the specific provision of Section 47 of the Disabilities Act and that even if the above amount was paid under the scheme, the petitioner would be entitled for reinstatement.


We, therefore, do not find any merit in the contentions advanced on behalf of the petitioners that as the applicant had received compensation under the Workmen Compensation Act, there was no occasion for the petitioners to protect his pay.
We are also of the opinion that the conditions stipulated in Rule 22 of the Fundamental Rules cannot deprive the petitioner of his legitimate claim for protection of the last pay drawn by him as DCM. The Hon'ble Supreme Court in the case of Kunal Singh (supra) after noticing the provisions of Section 72 of the Disabilities Act had clearly observed that the Disabilities Act was a special legislation dealing with the persons with disabilities, protection of rights and full participation to them. Thus, in our view the provisions of Section 47 will clearly override Rule 22 of the Fundamental Rules. In this view of the matter, the contention raised by the learned counsel for the petitioners that as the applicant had been given the advance increments taking into consideration the number of years of service rendered on the post of DCM, the protection of last pay cannot be given has to be rejected. This would not only be in conformity with the provisions of Section 47 of the Disabilities Act but would also be in accordance with the decisions of the Supreme Court, to which we have referred above, rendered prior to the enforcement of the Disabilities Act wherein such applicants were clearly entitled to protection of the last pay drawn.


There is, therefore, no infirmity in the order of the Tribunal granting protection of the last pay drawn by the appellant as DCM even though he was continued as LDC.
The learned counsel for the petitioners also very feebly submitted that the Tribunal was not justified in quashing the retirement order. In our considered opinion, this contention is dependent upon the fact whether the applicant was entitled to the protection of the last pay drawn by him as DCM as the applicant had been retired merely on the ground that he insisted upon protection of his last pay. The records clearly reveal that after receipt of the communication dated 5th January, 1998, the applicant joined as LDC but had made a detailed representation to the authorities to protect his pay by retaining him in service as Store Superintendent/Store Foreman and even when he was informed by the authorities by the letter dated 21st July, 1998 that his pay cannot be protected, the applicant again made a request for protection of pay so that he could support his family but the department issued the order dated 1st February, 1999 by which the applicant was retired. We have upheld the order of the Tribunal granting pay protection to the applicant and, therefore, this submission of the learned counsel for the petitioners cannot be accepted as the applicant had merely been insisting for grant of benefits due to him in law.


Learned counsel for the petitioners then contended that the applicant was not entitled to any relief as he had not suffered the injury ''during the course of employment'. This contention cannot be accepted. In the first instance such a plea was not raised before the Tribunal and nor has such a ground been taken in the petition and it is only during the course of the argument that such a plea has been taken. A perusal of the Original Application filed by the petitioners before the Tribunal, however, clearly shows that after completing the tubewell work, the petitioner met with the accident when he was returning back. Thus, it cannot be said that the injury was not caused ''during the course of employment'.


Even otherwise, we are unable to accept such a contention because if we agree to the submission of the learned counsel for the petitioners that ''during his service' has to be read or be substituted by ''during the course of his employment' then the Court will be substituting the words which the Legislature in its wisdom has not used in the section. The Legislature has consciously used the word ''disability during his service' in Section 47 of the Disabilities Act and has not defined that the disability must be one which should occur ''during the course of employment'. We are, therefore, of the considered opinion that Section 47 of the Disabilities Act does not require that the person must suffer the disability ''during the course of employment' and even if he suffers the disability during the period of service but outside the course of employment then too he is entitled to the protection. This view was also taken by the Delhi High Court in the case of Satya Bir Singh Vs. Delhi Transport Corporation & Anr. [(2005) 1 PDD (CC) 398 with which we entirely agree.


Before parting with this case we must not forget to refer to a recent decision of the Hon'ble Supreme Court in Indian Banks Association, Bombay & Ors. Vs. M/s. Devkala Consultancy Service & Ors. AIR 2004 SC 2491. In the said case vast sum of money had been collected by the Banks in rounding up of interest rates under the Interest Tax Act, 1974. This was declared to be illegal by the Supreme Court but it was observed that by directing the Union of India to refund the excess amount collected through the Banks and consequently ask the Banks to refund the same to the borrowers would take a long time and, therefore, it was thought proper to create a fund for the benefit of the disadvantaged people as it was found that despite the progressive stand of the Court and the initiatives taken by the Government, the implementation of the Disabilities Act was far from satisfactory and that the disabled were victims of discrimination in spite of beneficial provisions of the Act. The Supreme Court, therefore, in larger interest, created a fund for this purpose and the excess amount collected was directed to be deposited in the said fund. It also recommended to the Central Government, with a view to effectively implement the provisions of the Disabilities Act, to amend the same by providing for creation of such a fund.


We have referred to the aforesaid decision only to emphasise that time and again it has been pointed out by the Hon'ble Supreme Court that every endeavour must be made to ensure that the disabled are able to reap the benefit of the Disabilities Act.


We have not been able to find merit in any of the contentions advanced by the learned counsel for the petitioners. The Writ Petition is accordingly dismissed.

Dt.-4.1.2006
NSC/GS