Thursday, October 28, 2010

Disability Pension if Army Personal injured while on leave

Dear Friends,

This judgement comes in contrast to other judgement especially of the Delhi High Court which highlighted that the disability should be attributable to military service. From that angle, I feel the Punjab and Haryana High Court has given its judgements taking the holistic view of social justice provisions to those who are in the service of protecting the nation while disagreeing totally with Delhi High Court judgement.

I am hopeful that this trend will boost the morale of the combatant members of the  Armed Forces and Hon'ble Supreme Court will also take an appropriate view in the matter giving benefit to the soldiers when this matter reaches them in appeal. 

For the update on this matter in the Supreme Court, please refer to my post dated 18 July 2011. whereby the SC did not agree with granting disabilty pension if the injury is not attributable to military service.

SC Vashishth

Here is the current coverage of the case:

The Punjab and Haryana High Court has ruled that Army personnel will be entitled to disability pension if injured in an accident while on annual/casual leave. As of now, Army personnel who suffer injury during annual leave are denied disability pension.

The order of the Full Bench of the High Court comprising Justices A K Goel, Alok Singh and K Kannan is significant as it disagrees with a judgment given by Full Bench of the Delhi HC on the same issue. With two Full Benches having divergent judgments on the issue, the question of law is all set to be decided by the Supreme Court.

In its 25-page judgment, the Full Bench made it clear that an Army personnel who suffers an injury or meets with an accident during leave will be entitled to disability pension only if the activity, during which he suffers the injury, is compatible with a military activity. For instance, if an Army personnel meets with an accident on leave, he is entitled to disability pension. But he will not be entitled to disability pension if he is injured while engaged in an activity which is not compatible with military service, or gets drunk and enters into a brawl.

The order came on two set of petitions filed by the Union of India against two Army personnel namely former sepoy Sumanjit Singh and former naib subedar Khusbash Singh.

Tribune News Service, Chandigarh, April 5

Army personnel on casual or annual leave shall be considered on duty in case of any mishap, a three-Judge Bench of the Punjab and Haryana High Court today ruled.

The Bench made it clear that to decide their disability pension entitlement, it was to be seen whether the disability was attributable to or aggravated by military service.

With this, the Bench of Justice Adarsh Kumar Goel, Justice K Kannan and Justice Alok Singh has put to rest the controversy on disability pension entitlement of Army personnel suffering disability in accidents while on leave. So far, more often than not they were denied disability pension on the ground of not being on duty, while on leave.

The assertion comes with a rider. The Bench has clarified the only exception is “when by the virtue of Rule 11 of the leave rules, he could not be deemed to be on duty, if he had not actually performed duty in that year”.

The ruling came on a bunch of two petitions by the Union of India against two Army personnel. “In both cases, the disability had arisen through accidents during leave.”

Speaking for the Bench, Justice Kannan asserted: “If the Army personnel were on duty and they suffer disability due to natural causes, the issue whether it was attributable to or aggravated by military service will be examined by taking the case of Army personnel as they were and examining whether it was intervention of the Army service that caused the disability….

“In cases where the injury that resulted in the disability was due to an accident, which was not due to natural, pathological, physiological or psychological cause, the question that has to be answered is whether the activity or conduct that led to the accident was the result of any activity that is even remotely connected to military service.

“An activity of an independent business, or avocation or calling that would be inconsistent to military service, and an accident occurring during such activity, cannot be attributable to military service,” the Bench concluded.

Disability Pension

However, to decide their disability pension entitlement in case of any mishap, it is to be seen whether the disability is attributable to or aggravated by military service

Rider in the ruling is “when by the virtue of Rule 11 of the leave rules, he could not be deemed to be on duty, if he had not actually performed duty in that year”

Earlier Delhi High Court Order 

The Delhi High Court has ruled that an Army man cannot claim disability pension for an injury resulting from an activity not connected with military service.

New Delhi, Aug 24 : The Delhi High Court has ruled that an Army man cannot claim disability pension for an injury resulting from an activity not connected with military service.

A Special Bench comprising Justices Vikramjit Sen, Sanjeev Khanna and S L Bhayana passed the verdict following a difference of opinion between the judges in a Division Bench.

While referring to a Supreme Court ruling the Special Bench observed, "Injury or death resulting from an activity not connected with military service would not justify and sustain a claim for disability pension."

"This is so regardless of whether the injury or death has occurred at the place of posting or during the working hours," the Bench added.

The Court dismissed a plea of ex Naik Dilbagh for disability pension in addition to family pension. Dilbagh, in a petition, claimed for the disability pension after he had received a head injury in a road accident on Delhi-Panipat road while going to a school for the admission of his child on December 25, 1993.

Dilbagh was on a casual leave from December 12 to 29, 1993 at the time of the accident.

Friday, October 8, 2010

Disabled Candidates are at par with SC/ST candidates

Dear Friends,

I had the opportunity to read the order of the Hon'ble High Court of Delhi in WP(C) 1352/2008  WP(C) 8750/2009 titled Md. Shah Afzal Vs. Medical Council of India and Anr. delivered on 06.07.2010. I am a little surprised by this move of the High Court in refusing to accept the petitioner's contention that the physically disabled candidates should be treated at par with the SC/ST candidates and merely advising the Government of India to consider the recommendations of Chief Commissioner for Disabilities who had directed all government-aided institutions to extend the relaxation in qualifying marks to physically disabled candidates in order to bring them at par with SC/ST candidates.  

The court in its concluding para said "Although we feel that physically disabled persons should be extended all the rights, privileges and benefits under the said Act so as to ensure that they are not discriminated against and that they come within the social mainstream, we do not agree with the contentions made on behalf of the petitioner that the petitioner, as of right, can claim parity with SC/ST candidates insofar as the relaxation in the minimum marks required is concerned.

The court concluded that insofar as physically disabled persons are concerned, they have a right to reservation but there is no right to relaxation or a concession in the minimum standards. 

In my considered view the stand of Medical Council of India that  physically disabled candidates cannot claim parity with SC/ST candidates as the two stand on entirely different footings is utterly flawed so is the conclusion of the Hon'ble Court. 

Argument -1

In the instant case the Hon'ble Court should have looked at the objective of the Persons with Disabilities Act 1995 and should have seen the DoPT Memorandum dated 29 December 2005,. Para No. 22 of the said notification does talk about relaxation of standards of suitability which is often given to the SC/ST categories also. Here is the exercpt:

"22. RELAXATION OF STANDARD OF SUITABILITY: If sufficient number of persons with disabilities are not available on the basis of the general standard to fill all the vacancies reserved for them, candidates belonging to this category may be selected on relaxed standard to fill up the remaining vacancies reserved for them provided they are not found unfit for such post or posts. Thus, to the extent the number of vacancies reserved for persons with disabilities cannot be filled on the basis of general standards, candidates belonging to this category may be taken by relaxing the standards to make up the deficiency in the reserved quota subject to the fitness of these candidates for appointment to the post / posts in question."

Therefore, taking an analogy from the relaxation given here for employment, similar relaxation can easily be given to accommodate candidates with disabilities in the professional education too! 


Also the direction of the Chief Commissioner disabilities who is considered to be a Specialized Court on the law relating to disability, should have been given due importance for the decision of the CCPD was based of the very objective of the Disabilities Act and stand taken by the Government of India vis-a-vis parity between the disabled candidates and those belonging to SC/ST. Both categories have suffered marginalization due to lack of equitable opportunities due to social and environmental barriers and hence were considered for positive discrimination set out in the Indian Constitution by way of reservation despite Right to Equality.

Additionally it is the confirmed policy stand of the Govt. of India that relaxation in standards should be favoured when candidates belonging to reserved categories are not available on the basis of general standard to fill all the vacancies reserved for them. And there is no ambiguity that Persons with Disabilities are in reserved categories.


Hon'ble Supreme Court in Writ Petition (Civil) No. 115/1998 titled All India Confederation of the Blind Versus Union of India and Others on 22.03.2002 had upheld the stand taken by the Chief Commissioner-Disabilities and Govt. of India that by extending the same relaxation to particularly blind/low-vision and in general all disabled at par with SC /ST, would bring parity amongst all persons with disabilities irrespective of their vertical categories. (Click here to read the Supreme Court Order on the IA no 4.)

Lessons from the Case

Therefore, in all probabilities, the Hon'ble High Court of Delhi in the instant matter has erroneously ordered against the settled principals and the explanation as above. I feel the Counsels should do their homework while taking up matters of such public importance. Had the court been appraised of the above settled principal of Govt. of India and the existing order of the Hon'ble Supreme Court, this injustice to the petitioner could have been avoided. Worst is even the Representative of Chief Commissioner-Disability did not point out to the settled and accepted principal in an earlier case before the Supreme Court. I am not aware whether the petitioner had wherewithal to pursue the matter at Supreme Court level and eventually this erroneous judgment finality.

Need of Amendments in the Constitution of India to include Disability

The Honb'e Judge points out in the order "The fact that the physically disabled fall in a different class to the candidates belonging to the SC/ST category, in itself, implies that they could be treated differently just as candidates belonging to the general category are, indeed, treated differently from those belonging to the SC/ST category. The second answer is that what has been given to the SC/ST candidates is a concession. The petitioner, belonging to a physically disabled category, cannot claim such a concession as a right. "

This also indicates that the disability community needs to advocate for an amendment in Article 15(1), 15(2) and in 16(2) the Constitution of India so that discrimination on the basis of disability is checked and also Disability as a category is taken at par along with SC/ST categories.

Article 15(1)) be amended as:

“The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, disabilities (be added) or any of them

Article 15(2) be amended as:

No citizen shall, on grounds only of religion, race, caste, sex, place of birth, disabilities (be added) or any of them, be subject to any disability (be deleted), liability, restriction or condition with regard to…”

Article 16(2) be amended as: 
 “No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence, disabilities (be added) or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State”

This would give a great boost to the moral of persons with disabilities and so to their rights in India and give them parity with other reserved categories under Constitution of India. 

SC Vashishth
Advocate-Disability Rights

Indian Express; Utkarsh Anand

In what might be a setback to thousands of physically challenged candidates looking to make careers in medicine, the Delhi High Court on Tuesday ruled that they cannot be given concession in qualifying marks similar to that of Scheduled Castes/Scheduled Tribes (SC/ST) candidates for admissions in MBBS courses in the Capital.

Dismissing a couple of writ petitions filed by a candidate with over 60 per cent locomotive disability, a Division Bench of Justices B D Ahmed and Veena Birbal held that while disabled candidates already had a right of reservation in educational institutions, they could not be given the right to avail concession in the minimum standards prescribed by the Medical Council of India (MCI).

The court noted that though several seats were going waste despite the 3 per cent reservation for the physically challenged due to the candidates’ failure in securing the required 50 (now 45) per cent marks in the qualifying exams, it would rather stick to the legal dimensions of the case.

“For the present, it is sufficient for us to observe that insofar as physically disabled persons are concerned, they have a right to reservation, but there is no right to relaxation or a concession in the minimum standards. And unless and until such a right is established, no mandamus or writ can be issued to any authority to give them the relaxation or concession,” the Bench held.

The writ was filed by Md Shah Afzal, who was denied admission in a Delhi University (DU) college for the MBBS course for failing to get 50 per cent marks in the the Delhi University Medical Entrance Test (DUMET) in 2008 and 2009. He contended before the authorities that the concession given to SC/ST candidates — they need to secure 40 per cent marks to qualify — should also be given to physical disabled candidates.

Afzal subsequently approached the Chief Commissioner under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act. The Commissioner then directed DU and the MCI to extend the relaxation to physically challenged candidates as well.

Afzal then approached the High Court and said the MCI had refused to obey the Commissioner’s directive even though the colleges failed to fill up the seats reserved for the physically challenged. Afzal further contended that other reputed institutions like the AIIMS and the IITs had gone ahead to provide disabled candidates the same concession for admission as given to SC/ST candidates.

The MCI also approached the court, saying the Commissioner had overstepped his jurisdiction by issuing directives to them.The Bench then adjudicated the Commissioner’s order and the writ petitions on the basis of legal criteria and dismissed Afzal’s plea. “Although we feel that physically disabled persons should be extended all rights, privileges and benefits under the said Act..., we do not agree that the petitioner, as of right, can claim parity with SC/ST candidates insofar as a relaxation in the minimum marks is concerned,” it held.

The court also set aside the Commissioner’s order, noting that his role was only recommendatory in nature and could not be binding upon the MCI. The Bench, however, asked the MCI and the Centre to give a “serious view” to whether disabled candidates could be allowed the same relaxation in marks as SC/ST candidates.

Bombay High Court steps in to ensure Barrier Free Environment for persons with disabilities

Dear Friends,

Many people think what they can do if the pedestrian infrastructure is inaccessible to the disabled or the public places including Government offices are on the second floor without any provision of accessibility or that the local transport facilities are inaccessible to the elderly and the disabled! So they keep suffering the discrimination in silence and often attribute the problems to their own physical inability to cope up in the inaccessible city!

Also given the busy life to make two ends meet, one seldom get in to actions seeking rights from government agencies that demand time, money and congregations of like minded people. But, few disabled people organisations have woken up and started resisting against the apathy of the civic agencies, government in smaller towns and cities. However, the common experience has been that a representation to the Disability Commissioner in States which are often additional charge offices of bureaucrats and many times literally defunct offices in the States not aware about what to do in such a case fails to evoke any sympathy or corrective measure. Also the representations to the civic agencies or the transport departments fail to invoke any one's attention for them it is a non issue  in semi urban and rural India.

This is despite the fact that the Persons with Disabilities Act was passed way back in 1995 and currently Expert committees and activists are mulling changes required in the existing legislation in light of UNCRPD. The Act of 1995 is strong enough to make the state government take positive action to ensure barrier free environment at least in public transport, public roads and pedestrian infrastructure, in schools, colleges & offices that regularly see and deal with persons with disabilities and the elderly!

However, in Nagpur, a disabled scientist petitioned the High Court through a lawyer who is herself disabled against the apathy of the government. The court finds  a reason and directs that the petitioners along with architects be allowed to inspect all government buildings. Court has given two weeks time for the government to respond. This brings to the fore that when the attempts with the administration and civic agencies fail, disability rights can very convincingly be achieved through our active and responsible Indian Judiciary  who have always stood with the marginalized.

So the lesson learnt is- If rights are not automatically coming, citizen should demand for them by all the means available to them and the doors of the courts should be knocked if every thing fails. I am hopeful that with the recent launch of a Central Scheme "Scheme for Implementation of PwD Act 1995 (SIDPA)" by Govt. of India, the states would take immediate steps to ensure that the environment is made accessible to all citizen including the elderly, children and the disabled.

For information of all, just two days back Government of India issued a press release inviting proposals from States for giving Central Assistance to the tune of Rs. 100 crore to provide barrier free environment in Govt. Buildings and to make Government Websites accessible to the Persons with Disabilities. (Read the PIB release here) based on their said SIPDA Scheme. Click here for various other schemes of Ministry of Social Justice

Good wishes for the petitioners at Nagpur!

Subhash Chandra Vashishth

To read the coverage in detail click on the link  Move to make buildings disabled friendly

NAGPUR: The Nagpur bench of Bombay High Court on Wednesday directed the state government to allow free access to a team of petitioners and experts from Indian Institute of Architects (IIA) to all government buildings in the city to explore possibilities of making then friendly for the physically handicapped. 

The court's direction came on a plea filed by P N Andhare, a disabled scientist from the city, through his counsel Trupti Udeshi who is also physically handicapped. A division bench comprising justices Sharad Bobde and Mridula Bhatkar granted two weeks more to the government to file a reply on whether facilities for disabled could be constructed at Vasantrao Deshpande hall and social welfare department. 

The team will visit every government department and look for the facilities for disabled persons. It will also suggest how facilities like ramps could be erected there. The petitioner, who is 80% disabled, had filed the PIL through an NGO Indradhanu praying for compliance of Maharashtra government resolution of 2005 which mandated facilities for disabled. Secretary of Indradhanu Prakash Sohoni is another petitioner. 

According to the duo, local authorities including Nagpur Municipal Corporation (NMC) should make efforts to implement byelaws, guidelines and measures to ensure a barrier-free environment and non-discrimination in transport for the handicapped and senior citizens. Giving examples, Andhare and Sohoni pointed out that social welfare department was on second floor in Zilla Parishad building and there was no provision of lift. 

Moreover, in the renovated government buildings including Deshpande Hall, no efforts were made to incorporate ramp or railing to benefit the disabled. Pointing out several lacunae on the roads and footpaths, the petitioners claimed they were laid in such a way that it became difficult for both the disabled and the elderly to move while encroachments on all footpaths created obstacles in movement. 

They contended that despite Lokayukta's recommendations, the master transportation plan for the city had no provisions for disabled.

Wednesday, July 7, 2010

Surpreme Court of India | Govt. of India & Anr. Vs. Ravi Prakash Gupta | SLP (C) 14889 of 2009 | 07 July 2010

 Court: Supreme Court of India

Case No. & Title: SLP (C) 14889 of 2009, titled Govt of India  vs Ravi Prakash Gupta & Anr 

Bench: Altamas Kabir, Cyriac Joseph 

Date of Judgement:  07 July, 2010





Govt. of India (through Secretary & Anr.)                           .. Petitioners


Ravi Prakash Gupta & Anr.                                                    .. Respondents

 J U D G M E N T


1. The Government of India, through the Secretary, Ministry of Personnel & Public Grievances, Department of Personnel and Training and through the Secretary, Ministry of Social Justice and Empowerment, has filed this Special Leave Petition against the judgment and order dated 25th February, 2009, passed by the Delhi High Court in Writ Petition (Civil) No.5429 of 2008, allowing the Writ Petition and setting aside the order dated 7th April, 2008, passed by the Central Administrative Tribunal, Principal Bench, New Delhi, in O.A. No.1397 of 2007, filed by the Respondent No.1 herein, and allowing the reliefs prayed for therein.

2. The Respondent No.1 is a visually handicapped person who suffers from 100% blindness. He appeared in the Civil Services Examination conducted by the Union Public Service Commission in the year 2006. After clearing the preliminary examination, the Respondent No.1 appeared for the main examination in October, 2006 and was declared successful and was, thereafter, called for a personality test scheduled for 1st May, 2007. Pursuant to such interview, the names of 474 candidates who were selected were released on 14th May, 2007. In the said list, the name of one other visually impaired candidate also figured. The Respondent No.1 was at serial no.5 of the merit list prepared for visually handicapped candidates, who had been declared successful in the examination. According to the Respondent No.1, although there were more than 5 vacancies available in the visually handicapped category, only one post was offered under the said category and he was, therefore, not given appointment despite the vacancies available.

3. Being aggrieved by the manner in which selections were made for appointment in the visually handicapped category, the Respondent No.1 filed a Writ Petition, being Writ Petition (Civil) No.5338 of 2007, before the Delhi High Court. The same was subsequently withdrawn since it was the Central Administrative Tribunal only which had jurisdiction to entertain such matters at the first instance. The Respondent No.1, accordingly, withdrew the Writ Petition, with liberty to approach the Central Administrative Tribunal. Thereafter, he filed an application under Section 19 of the Administrative Tribunals Act, 1985, which was registered as O.A. No.1397 of 2007, staking his claim for appointment under the reservation of vacancies for disabled categories provided for under Section 33 of the Persons with Disabilities (Equal Opportunities, Protection, Rights and Full Participation) Act, 1995, hereinafter referred to as `the Disabilities Act, 1995'. The basic contention of the Respondent No.1 was tthat since the aforesaid Act came into force in 1996 providing a statutory mandate for reservation of 3% of the posts available for persons suffering from different kinds of disabilities enumerated in Section 33 of the Disabilities Act, 1995, such reservation ought to have been in force with effect from the date on which the Act came into force. According to the Respondent No.1, if the vacancies were to be considered from the year 1996, then instead of one vacancy being declared for the year in question, there should have been at least 7 vacancies from the reserved categories of disabilities which were interchangeable. It was, therefore, the case of the Respondent No.1 that having regard to the number of appointments made with regard to the disabled categories reserved under Section 33 of the Disabilities Act, 1995, since the Act came into force, there were at least 7 posts which could be filled up in the year 2006. However, in that year only one post from this category had been filled. It was, therefore, the case of the Respondent No.1 that being at serial no.5 of the list of successful candidates amongst the physically impaired candidates, there were sufficient number of vacancies in which he could have been appointed and that the authorities had acted contrary to the provisions of the above Act upon the faulty reasoning that the vacancies in the reserved posts could not be declared, without first identifying the same for the purposes of Sections 32 and 33 of the Disabilities Act, 1995.

4. The case of the Respondent No.1 having been negated by the Tribunal, the Respondent No.1 as indicated hereinbefore, moved the High Court and the High Court, upon accepting the Respondent No.1's case, set aside the order of the Central Administrative Tribunal dated 7th April, 2008, and allowed the Respondent No.1's O.A. No.1397 of 2007 filed before the Tribunal. While allowing the said application, the High Court, upon observing that a clear vacancy was available to which the Respondent No.1 could be accommodated on the basis of his position in the merit list, issued a mandamus to the Respondent No.1 to offer him an appointment to one of the reserved posts by issuing an appropriate appointment letter, within six weeks from the date of the order. Certain consequential orders were also passed together with cost of Rs.25,000/- to be paid by the Petitioner herein.

5. On behalf of the Government of India, which is the Petitioner herein, learned Additional Solicitor General, Ms. Indira Jaising, submitted that the submissions advanced on behalf of the Respondent No.1 which had been accepted by the High Court, were not tenable and that the Government of India had been actively involved in complying with the provisions of the Disabilities Act, 1995, after it came into force. The learned ASG contended that the Government of India had been making reservation for physically handicapped persons in Group `C' and `D' posts from 1977 and in order to consider the growing demand from the visually handicapped persons, a meeting for identification of jobs in various Ministries/Departments was scheduled in 1985 and 416 such posts were identified in Group `A' and `B' posts. In 1986, an Office Memorandum was issued by the Department of Personnel & Training (DoPT) providing for preference to be given to handicapped person for these posts. In 1988, another Office Memorandum was issued by the Government of India indicating that the identification done in the year 1986 would remain valid till the same was modified. After the Act came into force in 1996, a further Office Memorandum was issued, whereby reservation of physically handicapped persons in identified Group `A' and Group `B' posts/services was extended to posts which were to be filled up through direct recruitment. Learned ASG submitted that in 1999 the Ministry of Social Justice & Empowerment constituted an Expert Committee to identify/review posts in categories `A, `B', `C' and `D', in which recommendations were made for identification of posts for the visually handicapped persons. The report of the Expert Committee was accepted by the Ministry in 2001 and posts were duly identified for persons with disabilities. Learned ASG, however, made it clear that the 416 posts, which had been identified in 1985, did not include All India Services and that for the first time in 2005, the posts of the Indian Administrative Service were identified in compliance with the provisions of Section 33 of the Disabilities Act, 1995 and pursuant to such identification, the posts were reserved and filled up. Ms. Jaising also submitted that reservation upto 3% of vacancies in the reserved posts were, accordingly, identified with effect from 2006 and the claim of the Respondent No.1 for appointment on the basis of the argument that the reservation should have taken effect from 1996 when the Act came into force, was liable to be rejected.

6. Appearing in-person, Mr. Ravi Prakash Gupta, the Respondent No.1 herein, strongly defended the impugned judgment of the High Court and urged that the Special Leave Petition filed by the Government of India was liable to be dismissed. Mr. Gupta submitted that the fact that he was completely blind was known to the Petitioners and their respective authorities from the very beginning, since he had annexed his blindness certificate with his original application in the proforma provided by the Union Public Service Commission (U.P.S.C.), which showed the percentage of his blindness as 100%. However, the main thrust of Mr. Gupta's submissions was that when the Disabilities Act, 1995, came into force in 1996, it was the duty of the concerned authorities to reserve 3% of the total vacancies available immediately thereafter. The plea of non-identification of posts prior to the year 2006 was only an attempt to justify the failure of the Petitioners to act in terms of the Disabilities Act, 1995. Mr. Gupta submitted that the High Court had negated such contention made on behalf of the Petitioners and rightly directed the Petitioners to calculate the number of vacancies in terms of Section 33 of the above Act from 1996 when the said Act came into force.

7. Mr. Gupta then submitted that in terms of the Department's OM No.3635/3/2004 dated 29th December, 2005, reservations have been earmarked and should have been made available from 1996 itself and in the event the vacancies could not be filled up owing to lack of candidates, the same could have been carried forward for two years after which the same could have been treated as lapsed. Mr. Gupta submitted that although the Petitioners were fully aware of the said Office Memorandum, they chose not to act on the basis thereof and as admitted on behalf of the Government of India, the IAS cadre was identified in 2006 for the purposes of Section 33 of the Disabilities Act, 1995. In fact, the Act remained on paper as far as visually challenged candidates were concerned and only after the judgments of the Delhi High Court in the case of Ravi Kumar Arora and in the case of T.D. Dinakar were delivered, that the identification process was started. Mr. Gupta submitted that it would be pertinent to mention that the two above-mentioned candidates were appointed in the Civil Services without waiting for identification of their respective services on the orders of the High Court.

8. Mr. Gupta submitted that the plea of non- identification of posts in the IAS till the year 2006 could not absolve the petitioners of their statutory obligation to provide for reservation in terms of Section 33 of the aforesaid Act.

9. During the course of hearing, leave had been granted to one A.V. Prema Nath and one Mr. Rajesh Singh to intervene in the proceedings. The submissions made by the Respondent No.1 have been repeated and reiterated on behalf of the Intervenor No.1, Shri A.V. Prema Nath by A. Sumathi, learned Advocate. His written submissions are embellished with references to various decisions of this Court, including the decision in Francis Coralie Mullin vs. Administrator, Union Territory of Delhi & Ors. [(1981) 1 SCC 608], regarding the right to life under Article 21 of the Constitution. The main thrust of the submissions is with regard to the denial of rights to persons with disabilities under Section 33 of the Disabilities Act, 1995, which prevent them from enjoying their fundamental rights to equality and the right to live, by the State.

10. More detailed submissions were made by Mr. S.K. Rungta, learned Advocate, appearing on behalf of the Intervenor No.2, Mr. Rajesh Singh, and it was also sought to be pointed out that the said intervenor was himself a candidate from amongst the visually impaired candidates and had, in fact, been placed at serial no.3 in rank in the merit list for visually impaired candidates in the Central Services Examinations, 2006, whereas the Respondent No.1 had been placed at serial no.5. In other words, what was sought to be projected was that Shri Rajesh Singh had a better claim for appointment from amongst the visually impaired candidates over the Respondent No.1 and that if the vacancies in the reserved category were to be calculated from 1996 and even from 2001, when identification of posts in respect of Civil Services forming part of the IAS Cadre was sought to be effected and a notification to that effect was issued, the Respondent No.1 could not have been appointed.

11. It was further submitted that in the decision of this Court in The National Federation of Blind vs. Union Public Service Commission & Ors. [(1993) 2 SCC 411], the demand by blind candidates for being permitted to write the examination in Braille script, or with the help of a Scribe, for posts in the IAS was duly accepted for recruitment to the lowest posts in the service reserved for such persons. It was also held that blind and partially blind persons were eligible for appointment in Government posts. It was submitted that the submissions made on behalf of the Petitioners that the notification in respect of the services in respect of the Group `A' and `B' services in the IAS in 2005 was not a fresh exercise, but only an attempt to consolidate and strengthen the identification already available and that such an exercise could at best be said to be enabling and supplementary action for the smooth implementation of the statutory provisions containing the scheme of reservation for persons with disabilities, could not be taken as an excuse to postpone the benefit which had already accrued to candidates falling within 3% of the vacancies indicated in Section 33 of the Disabilities Act, 1995. It was also urged that after the issuance of OM dated 29th December, 2005 and OM dated 26th April, 2006, there was hardly any room for the Government of India to deny the benefit of reservation to persons with disabilities, including the blind, in Civil Services encompassing the IAS from the year 1996 itself. Furthermore, since the Act itself did not make any distinction between Group `A' and Group `B' services and Group `C' and Group `D' services, it was not available to the Government of India to contend that since identification had been done only for Group `C' and Group `D' services, prior to the year 2005, reservation in respect of Group `A' and `B' services, which include the IAS, for which identification was commenced in 2005, would only be available thereafter.

12. On behalf of the Intervenor No.2, it was submitted that the Special Leave Petition was liable to be dismissed with exemplary costs.

13. We have examined the matter with great care having regard to the nature of the issues involved in relation to the intention of the legislature to provide for integration of persons with disabilities into the social main stream and to lay down a strategy for comprehensive development and programmes and services and equalization of opportunities for persons with disabilities and for their education, training, employment and rehabilitation amongst other responsibilities. We have considered the matter from the said angle to ensure that the object of the Disabilities Act, 1995, which is to give effect to the proclamation on the full participation and equality of the people with disabilities in the Asian and Pacific Region, is fulfilled.

14. That the Respondent No.1 is eligible for appointment in the Civil Services after having been declared successful and having been placed at serial no.5 in the disabled category of visually impaired candidates, cannot be denied. The only question which is relevant for our purpose is whether on account of the failure of the Petitioners to identify posts for persons falling within the ambit of Section 33 of the Disabilities Act, 1995, the Respondent No.1 should be deprived of the benefit of his selection purportedly on the ground that there were no available vacancies in the said category. The other question which is connected with the first question and which also requires our consideration is whether the reservation provided for in Section 33 of the Disabilities Act, 1995, was dependent on identification of posts suitable for appointment in such categories, as has been sought to be contended on behalf of the Government of India in the instant case.

15. Although, the Delhi High Court has dealt with the aforesaid questions, we wish to add a few observations of our own in regard to the objects which the legislature intended to achieve by enacting the aforesaid Act. The submission made on behalf of the Union of India regarding the implementation of the provisions of Section 33 of the Disabilities Act, 1995, only after identification of posts suitable for such appointment, under Section 32 thereof, runs counter to the legislative intent with which the Act was enacted. To accept such a submission would amount to accepting a situation where the provisions of Section 33 of the aforesaid Act could be kept deferred indefinitely by bureaucratic inaction. Such a stand taken by the petitioners before the High Court was rightly rejected. Accordingly, the submission made on behalf of the Union of India that identification of Grade `A' and `B' posts in the I.A.S. was undertaken after the year 2005 is not of much substance. As has been pointed out by the High Court, neither Section 32 nor Section 33 of the aforesaid Act makes any distinction with regard to Grade `A', `B', `C' and `D' posts. They only speak of identification and reservation of posts for people with disabilities, though the proviso to Section 33 does empower the appropriate Government to exempt any establishment from the provisions of the said Section, having regard to the type of work carried on in any department or establishment. No such exemption has been pleaded or brought to our notice on behalf of the petitioners.

16. It is only logical that, as provided in Section 32 of the aforesaid Act, posts have to be identified for reservation for the purposes of Section 33, but such identification was meant to be simultaneously undertaken with the coming into operation of the Act, to give effect to the provisions of Section 33. The legislature never intended the provisions of Section 32 of the Act to be used as a tool to deny the benefits of Section 33 to these categories of disabled persons indicated therein. Such a submission strikes at the foundation of the provisions relating to the duty cast upon the appropriate Government to make appointments in every establishment (emphasis added). For the sake of reference, Sections 32 and 33 of the Disabilities Act, 1995, are reproduced hereinbelow :

"32.Identification of posts which can be reserved for persons with disabilities.- Appropriate Governments shall -

(a) Identify posts, in the establishments, which can be reserved for the persons with disability;

(b) At periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the developments in technology.

33.Reservation of posts.- Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from-

(i) blindness or low vision;

(ii) hearing impairment;

(iii) locomotor disability or cerebral palsy,

in the posts identified  for each disability:

Provided, that the appropriate Government may, having regard to the type of work carried on in any department or establishment by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section."

17. While it cannot be denied that unless posts are identified for the purposes of Section 33 of the aforesaid Act, no appointments from the reserved categories contained therein can be made, and that to such extent the provisions of Section 33 are dependent on Section 32 of the Act, as submitted by the learned ASG, but the extent of such dependence would be for the purpose of making appointments and not for the purpose of making reservation. In other words, reservation under Section 33 of the Act is not dependent on identification, as urged on behalf of the Union of India, though a duty has been cast upon the appropriate Government to make appointments in the number of posts reserved for the three categories mentioned in Section 33 of the Act in respect of persons suffering from the disabilities spelt out therein. In fact, a situation has also been noticed where on account of non-availability of candidates some of the reserved posts could remain vacant in a given year. For meeting such eventualities, provision was made to carry forward such vacancies for two years after which they would lapse. Since in the instant case such a situation did not arise and posts were not reserved under Section 33 of the Disabilities Act, 1995, the question of carrying forward of vacancies or lapse thereof, does not arise.

18. The various decisions cited by A. Sumathi, learned Advocate for the first intervenor, Shri A.V. Prema Nath, are not of assistance in the facts of this case, which depends on its own facts and interpretation of Sections 32 and 33 of the Disabilities Act, 1995.

19. We, therefore, see no reason to interfere with the judgment of the High Court impugned in the Special Leave Petition which is, accordingly, dismissed with costs. All interim orders are vacated. The petitioners are given eight weeks' time from today to give effect to the directions of the High Court.

20. The petitioners shall pay the cost of these proceedings to the respondent No.1 assessed at Rs.20,000/-, within four weeks from date.





New Delhi Dated:7th July, 2010.

Thursday, May 27, 2010

Avoid frivolous lawsuits, ministries advised |

Dear Friends,

Many ministries are notorious for filing lawsuits, Review Petitions and Appeals despite the Courts ordering as per the provisions of extant legislations, rules and bye-laws. I have pretty curious experience with one Union Ministry of Railways which defies all rules, laws and policies of the Government of India on employing persons with disabilities! They still consider the persons with disabilities as threat and employing them may lead to security issues. And they claim that being a railway responsible for the safety of passengers, they can not risk the life of passengers by employing persons with disabilities! Though there are no studies or scientific evidence to attribute any of the accidents in the Railways till date to the cause of Disability.

I call it a mind set. And we have seen it for over few years now that Railways has been at loggerheads with the Ministry of Social Justice literally pressuring the MSJE with reminder after reminder to consider their request for exempting all posts of railways from the purview of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 which is due for a sea-change in light of the new committee set up to suggest a New Legislation which is more right based.  The ministry of Social Justice has categorically refused for any such exemption however, that doesn't deter the Ministry of Railways.

I am wondering what would the Railways do when they would be confronted with the new disability law, which most of disability rights activists and supporters believe will usher a new era of rights based regime and ensure true inclusion of every personal experiencing disabilities of any kind.

I have few cases which I wanted to discuss, but for the lack of time, like that of one All India Confederation of the Blind is contesting against Railways seeking filling up of backlog of reserved vacanices in all cadres A,B,C and D and the one matter of Mr. Jayanta Khamari - a physically disabled civil engineer who has been serving in CPWD for past decade without any question on his ability, not finding welcome in Railway despite clearing the Engineering Services Exam on his own merit! The matter is still being contested by the Railways through a SLP before the Supreme Court of India despite loosing the matter in the court of Chief Commissioner of Persons with Disabilities & before the Double Bench of Orissa High Court. Even their review petition was dismissed by the Ld High Court, Orissa as being devoid of any merit.

But the Ministry has the audacity to waste public money in frivolous litigation with impunity. Is Govt. of India monitoring how much their ministries wasting by just fighting against each other in the court of laws?

Any RTI will reveal, as to how many cases, writ petitions, PILs are being contested by Railways in different high courts in India merely on implementation of the Persons with Disabilities Act!

I do hope that this is an early reminder and Ministries do take note of these issues of alarming proportions.

SC Vashishth
Advocate-Disability Rights

Avoid frivolous lawsuits, ministries advised

Thursday, April 1, 2010

Private Organisations not bound by Disability Act: Says Supreme Court

Dear Friends,

This post is with respect to a recent judgement by Hon'ble Supreme Court in  Civil Appeal No. 1886/2007 titled Dalco Engineering Private Ltd. Vs. Shree Satish Prabhakar Padhye and Ors with another Civil Appeal No. 1858/2007 titled Fancy Rehabilitation Trust and Anr. Vs. Union of India and Ors.

The employee Mr. Padhye acquired hearing impairment during the period of service and was terminated by the employer. Employee got a favourable suggestion from Disability Commissioner Pune for his re-instatement under Section 47 of Disabilty Act which says:

“47. 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.”

The word "Establishment" has been defined by Section 2( k)( i) of the Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 defines the word "Establishment as :-

"Establishment" means a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined in section 617 of 'the Companies Act, 1956 and includes Departments of a Government;

On a simple reading of the definition of the word "establishment", it is clear that any organisation established under a central, provincial or state act will be an establishment. Thus any organisation registered and established under the provisions of the Societies Registration Act or the Indian Trust Act or The Companies Act should ordinarily get covered under this.

However over insistence here on the Government share/ownership or control indicates that the intention of creators of this statute was to only include organisations which are largely government or local authorities created under central or state statutes or has a government stake of 51% (read section 617 of Companies Act which has been specifically referred to indicate that this has to be read in exclusion of the Companies Act). Also the heading of Section 47 of Disability Act is "Non-discrimination in Government Employment" which clarifies the intention of the legislature that it did not wanted to include private companies under the word "establishment".

The Hon'ble Supreme Court has indicated that similar phrase in the Indian Penal Code and the Prevention of Corruption Act meant "government companies".  The reason put forward by the Court is "A ‘company’ is not ‘established’ under the Companies Act. An incorporated company does not ‘owe’ its existence to the Companies Act. An incorporated company is formed by the act of any seven or more persons (or two or more persons for a private company) associated for any lawful purpose subscribing their names to a Memorandum of Association and by complying with the requirements of the Companies Act in respect of registration. Therefore, a ‘company’ is incorporated and registered under the Companies Act and not established under the Companies Act.

It further clarifies that inclusion of only a specific category of companies incorporated under the Companies Act, 1956 (Govt. Companies registered under Section  617) within the definition of ‘establishment’ necessarily and impliedly excludes all other types of companies registered under the Companies Act, 1956, from the definition of ‘establishment’.

A counter argument to this would be that while IPC and Prevention of Corruption Act are punitive in nature and should be interpreted in restrictive and strict sense, the Disability Act is a benevolent, socio-economic and empowering legislation and must be interpreted in a way which favours the marginalized section of the society.

However, now a decision of the learned judges of the Supreme Court is out here clarifying the meaning of word establishment, removing the clouds of doubt on the existing legislation and leaving no room for its benevolent interpretation in future. Therefore, it would be worthwhile now that the disability activists address this issue in the New Law that is being suggested and be categorical that the provisions of the disability act would apply to all establishment including those private initiatives which are registered under any of the Central or State statutes like companies, trusts, societies and cooperatives etc.

This has larger force of argument because when a labour legislation related to PF, Minimum Wage etc. is applicable to private employers with a certain number of employees then why can't disability legislation be applicable - for the objective of both legislations is to empower the weak, vulnerable and marginalized members of our society?

On second thought, it comes to my mind as to why the exploitation of an employee with disability by an employer could not be taken up through labour legislations read in conjunction with disability Act and why alone under Section 47 of the Disability Act? The last line of the judgement - "This will not come in the way of employee of any private company, who has been terminated on the ground of disability, seeking or enforcing any right available under any other statute, in accordance with the law." -  gives a hint that it could have perhaps been better fought under labour legislations. 

Here is the news report on the issue from the Mail Today.


SC Vashishth
Advocate-Disability Rights

SC says disability Act not binding on private firms

(To read from source in (PDF 2 MB

Mail Today, 01st April 2010

THE SUPREME Court on Wednesday held that a law enacted in 1995, to prevent exploitation of the disabled by their employers, could not be enforced on the private sector.

A three- judge bench, comprising justices R. V. Raveendran, R. M. Lodha and C. K. Prasad, said the Persons with Disabilities ( Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, did not cast any obligation on private companies and schools.

The bench rejected a contention that the Act covered all companies incorporated under the Companies Act.

A private company had approached the apex court, against a high court order holding that the disabilities commissioner had jurisdiction over any company incorporated under the Companies Act. The high court had said it could direct the company to reinstate an employee who was dismissed on account of disability.

The second appeal was filed by a trust — on behalf of the employee — which had approached the apex court after the high court refused to pass any such direction to the company and admitted that the first judgment was incorrect.

Opposing the company’s appeal, the dismissed employee pointed out that section 2( k)( i) of the disability Act brought “ a corporation established by or under a central, provincial, or state Act” within its ambit.

But the apex court said a similar phrase in the Indian Penal Code and the Prevention of Corruption Act meant government companies.