Supreme Court | Andhra Pradesh State Road Transport Corporation & Ors. Vs. B. S. Reddy | 23 Feb 2017 | Section 47 of PWD Act 1995

Court: Supreme Court of India

Bench: ADARSH KUMAR GOEL AND UDAY UMESH LALIT, JJ.

Case No.:   Civil Appeal No.3529 of 2017,Civil Appeal Nos.3428-3458 of 2017,Civil Appeal Nos.3464-3499 of 2017,Civil Appeal Nos.3501-3527 of 2017

Case Title: Andhra Pradesh State Road Transport Corporation & Ors. Vs. B. S. Reddy

Date of Judgement:  23 February, 2017.

Cited as : 2017 ALL SCR 1413

Cases Cited:

• Hawa Singh Vs. Delhi Transport Corporation, W.P. (C) No.7880/2011, Dt.3.2.2012 [Para 4,5]
• Airport Authority of India Vs. Kumar Bharat Prasad Narain Singh, L.P.A. No.1601/2005, Dt.14.12.2005 [Para 4,5]
• G. Muthu Vs. Management of Tamil Nadu State Transport Corporation (Madurai) Limited, (2006) 4 MLJ 1669 [Para 4]

Synopisis:  Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act (1995), Ss.47, 2(i) - Benefit of S.47 of Act - Prayer for - By employees of Andhra Pradesh and Telangana Transport Corporation - Benefit is available to only those persons who are covered under S.2(i) of Act and not to other persons - Schemes of Andhra Pradesh and Telangana Transport Corporation covers even those employees who are not covered by Section 2(i) of the Act - Thus, those who are disabled within meaning of S.2(i) are not without any benefit whatsoever - Employees of Andhra Pradesh and Telangana Transport Corporation are entitled to invoke such schemes but not benefit of Section 47. 2006 (4) MLJ 1669 Dissented from. (Paras, 4, 5, 6)

JUDGMENT

1. Delay condoned.

2. Leave granted.

3. We have heard learned counsel for the parties. The issue raised in this set of cases is whether benefit of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, is available to those covered by Section 2(i) of the said Act alone or applies even to persons not covered thereby.

4. The employees in question suffered disability during employment and they sought benefit of Section 47 of the Act to the effect that their services could not be dispensed with on account of the said disability, nor their rank could be reduced and they could only be shifted to some other post, with same pay-scale and service benefits. The claim was contested by the appellants-Transport Corporations with the plea that the benefit of Section 47 of the Act was available only to those covered by Section 2(i) which defines "disability". The said stand was supported on the basis of judgments of the High Court of Delhi in the cases of Hawa Singh v. Delhi Transport Corporation dated 3.2.2012 in W.P. (C) No.7880 of 2011 & Airport Authority of India v. Kumar Bharat Prasad Narain Singh dated 14.12.2005 in L.P.A. NO.1601 of 2005. The High Court of Delhi dissented from the judgment of the Madras High Court in G. Muthu V. Management of Tamil Nadu State Transport Corporation (Madurai) Limited - (2006) 4 MLJ 1669 which lays down that the definition under Section 2(i) could not control the provision of Section 47 of the Act, as the context of Section 47 of the Act requires a different meaning to be given to the word "disability".

5. We are unable to subscribe to the view taken by the Madras High Court which has been followed in the impugned order and approve the view taken by the High Court of Delhi in Hawa Singh v. Delhi Transport Corporation & Airport Authority of India v. Kumar Bharat Prasad Narain Singh. We do not find any reason to hold that expression "disability" in Section 47 of the Act is used in a different context so as not to go by the definition given in Section 2(i) of the Act. We also note that even though Section 2(i) of the Act may not cover every disabled, scheme of the Andhra Pradesh and Telangana Transport Corporations covers even those employees who are not covered by Section 2(i) of the Act. Thus, those who are disabled within the meaning of Section 2(i) are not without any benefit whatsoever. They are, thus, entitled to invoke such schemes but not Section 47 of the Act.

6. In view of above, we allow these appeals in above terms and hold that the benefit of Section 47 of the Act will be available only to those who are covered by Section 2(i) of the Act. No costs.

7. It will be open for the appellants-Corporations to take decision on individual grievances of the employees and the employees are at liberty to take their remedies in terms of the above judgment.

8. Pending applications, if any, shall also stand disposed of.

Ordered accordingly.

SC says Reservations & Relaxations for disabled - a matter of Govt. Policy; Rejects Delhi & Madras HC view on number of attempts at CSE [Judgement Included]

Dear Colleagues,

While hearing Civil Appeal No. 858 of 2017 (Arising out of SLP (C) No. 21587 of 2013), titled Union of India & Ors Vs. M. Selvakumar & Anr., a bench of Hon'ble Supreme Court comprising  Sh. Justice Ranjan Gogoi and Sh. Justice Ashok Bhushan, in its judgement dated 24 January 2017 has observed, "It is not in the domain of the courts to embark upon an inquiry as to whether a particular public policy is wise and acceptable or whether the better policy could be evolved. The court can only interfere if the policy framed is absolutely capricious and non-informed by reasons, or totally arbitrary, offending the basic requirement of the Article 14 (right to equality) of the Constitution."

The bench headed by Ranjan Gogoi set aside the judgement of the Madras High Court and the view taken by Delhi High Court that "increasing the number of attempts for Physically Handicapped candidates belonging to General Category from 4 to 7 with effect from the 2007 Examination and not proportionally increasing the number of attempts for Physically Handicapped candidates belonging to OBC Category from 7 to 10, is discriminatory and arbitrary".

Judgement

To read the judgement in Civil Appeal No. 858 of 2017 titled Union of India & Ors Vs. M. Selvakumar & Anr  in portable document format (PDF) click here, and in Notepad format click here.

Background

It is pertinent to note that the Madras High Court in its order passed on 24.01.2012 in Writ Petition (C) No. 18705 of 2010 titled M. Selvakumar versus Central Administrative Tribunal and Others had discussed in detail clause-3 (iv) of the Notification for CSE 2008 and specifically discussed the provision which states that physically handicapped will get as many attempts as are available to other non-physically handicapped candidates of his or her community, subject to the condition that physically handicapped candidates belonging to the general category shall be eligible for 07 attempts. The High Court had further observed that the number of attempts for the physically handicapped persons in the general category has been increased from four to seven. However, the same benefit has not been proportionally extended to the PH candidates in the OBC community. Considering this to be inconsistent with Articles 14 and 16 of the Constitution of India the petitioner M Selvakumar was given relaxation in the number of attempts as had been granted to the PH candidates belonging to general category. However, there were no specific direction of the Madras High Court to quash clause-3 of the notification nor there was any direction to the respondents to make necessary changes in the Rules for future examinations.

The SC bench said "the horizontal reservation and relaxation for Physically Handicapped Category candidates for Civil Services Examination, is a matter of Governmental policy and the Government after considering the relevant materials have extended relaxation and concessions to the Physically Handicapped candidates belonging to the Reserved Category as well as General Category.

The verdict came on appeal filed by the Union of India challenging two judgements of the high courts which allowed Physically Handicapped students of OBC to avail 10 attempts instead of 7 attempts in the Civil Services Examination.

Both the High Court's had held that since the attempts for Physically Handicapped candidates belonging to General Category have been increased from 4 to 7 with effect from 2007 Civil Services Examination, there should be proportionate increase in attempts to be taken by Physically Handicapped Candidates belonging to the OBC Category. 

The apex court said when the attempts for exams of Physically Handicapped candidates of OBC Category as well as those of in General Category are made equal, there is no question of discrimination as the candidate belonging to OBC Category has already been given ten years relaxation in age which give them a relaxation of three more years.

"The present case is not a case of treating unequals as equal. It is a case of extending concessions and relaxations to the physically handicapped candidates belonging to general category as well as physically handicapped belonging to OBC category. Physically handicapped category is a category in itself, a person who is physically handicapped, be it physically handicapped of a general category or OBC category, suffering from similar disability has to be treated alike in extending the relaxation and concessions," noted the bench in its judgment.

Both being provided 7 attempts to appear in Civil Services Examination, no discrimination or arbitrariness can be found in the above scenario", the bench concluded.

Bombay HC passes directions to Railways on facilities for disabled; seeks compliance report by 02 May 2017

Dear colleagues,

The Bombay High Court while hearing Writ Petition (Civil) 1684 of 2016 titled Nitin Arjun Gaikwad  Vs. The Union Of India And Ors, on Wednesday, the 25th January 2017, has passed directions to the Railways to :

• provide facilities to disabled passengers travelling in local trains 
• CCTV cameras inside reserved compartments
• special seating arrangements in the platform for the disabled
• and a a helpline facility for disabled passengers.

The division bench of Shri Justice A S Oka  and Smt. Justice Anuja Prabhudessai also directed the Director General of the Police to issue a circular to police stations in the state to take disciplinary action against police personnel who travel illegally in coaches meant for the disabled.

“The railways must appoint special officers to look into grievances of disabled passengers and also to ensure there is no unauthorised entry and travel by general public or police personnel in these reserved compartments. Despite several complaints made about this unauthorised travel, no action has been taken and neither measures to stop this. It is very shocking that the police themselves are violating the law." the Court observed.

The petitioner, Mr. Nitin Arjun Gaikwad who himself is a person with disability had filed a petition stating unauthorised commute by railway and police officials in the reserved compartments and about various facilities and measures promised to the disabled in platforms and trains which have not been implemented yet, despite orders passed by the Commissioner for Persons with Disabilities (CPD) which had directed the railways to implement these measures.

The court, while taking a note of the order by the State Commissioner for Persons with Disabilities appointed under the Disability Act of 1995 said, “Apart from CCTVs and seating arrangements for the disabled, a helpline should be activated so that passengers can immediately whatsapp or SMS about unauthorised commute and the railways and the police should appropriately respond and take action immediately.” The court also said that a special drive with extra police personnel should be carried out at various railway stations to create awareness on reserved coaches to ensure nobody travels illegally in coaches meant for the disabled.

The court has directed the railways, the Director General of Police (DGP) and the State Home Department of Maharashtra to submit a Compliance report affidavit regarding the steps taken, on May 2, 2017.

The matter was deferred on 18th Jan 2017 for 25th Jan 2017 for directions at the orders of the Court. 

Delhi Commission for Women issues notice to DoPT for denying IRAS to Women with Disability

Dear Colleagues,

The Delhi Commission for Women (DCW) has on 17 Jan 2016 issued a notice to Department of Personnel and Training (DoPT), Central government, in connection with a complaint filed by a blind woman alleging cancellation of appointment in Indian Railways Accounts Service (IRAS) by the railway ministry due to her disability.

The commission has sought -- within a week -- the factual report of the woman's candidature, reasons for rejection of IRAS service initially allocated to her and the proposed action plan of the DoPT to resolve the issue and compensate.

The woman, who qualified the civil services examination in 2015, has alleged that she was initially allotted a job in IRAS. However, her appointment was cancelled because of her disability and later when she followed it up with DoPT, she was reallocated a job in Postal and Telecommunication, Accounts and Finance Service, the woman alleged.

"While she was allocated the IRAS service as per her rank in CSE-2015, she has now been allocated a job which is in contravention of her rank, merit and preference of service," said the notice issued by DCW chief Swati Maliwal to DoPT secretary BP Sharma.

"It is evident that the lady has already undergone a great deal of struggle and after painstaking efforts has cleared the civil services examination. Crucial time of training and foundation course has been wasted due to systemic delays. Therefore, it is necessary that immediate action is taken to rectify the same," the notice further read.

In her representation to Maliwal, the complainant has said that at present she is pursuing PhD from Jawaharlal Nehru University. "Born with a weak eyesight, I became completely blind at the age of 6. Surgeries were done but my retina could not be reattached. However, without wasting much time, I started learning Braille and continued with my studies. For this, I had to leave the comfort of home and stayed at a hostel for blind," she said in her representation to DCW.

Source: Times of India

UK Supreme Court rules in favour of Wheelchair than Buggy in public buses

Dear Colleagues,

You would remember this unique case of a wheelchair user Mr. Doug Paulley who approached the court after he was told he could not get on a bus to Leeds in 2012 when a mother with a pushchair refused to move. Mr. Paulley had argued that operator FirstGroup's "requesting, not requiring" policy was discriminatory. 

Brief of the Case

The appeal concerns the lawfulness of a bus company’s policy in relation to the use of the space provided for wheelchair users on its buses. Mr Paulley is a wheelchair user who attempted to board a bus operated by a subsidiary of FirstGroup PLC on 24th February 2012. 

The bus had a space marked by a wheelchair sign and a notice saying, “Please give up this space for a wheelchair user” (“the Notice”). At the time Mr Paulley attempted to board, a woman with a sleeping child in a pushchair occupied this space. She was asked by the driver to fold down the chair and move; however, she refused, stating that it did not fold down. Mr Paulley had to wait for the next bus as a result. 

Mr Paulley issued proceedings against FirstGroup for unlawful discrimination on the ground of his disability, claiming that FirstGroup had failed to make “reasonable adjustments” to its policies contrary to section 29(2) of the Equality Act 2010. The Recorder found that FirstGroup operated a “provision criterion or practice” (“PCP”) consisting of a “policy… of ‘first come first served’… whereby a non-wheelchair user occupying the space on the bus would be requested to move, but if the request was refused nothing more would be done.” This placed Mr Paulley and other wheelchair users at a substantial disadvantage by comparison with non-disabled passengers. 

There were reasonable adjustments that FirstGroup could have made to eliminate the disadvantage: 

(i) altering the Notice positively to require non-disabled passengers occupying a space to move if a wheelchair user needed it; and 

(ii) adopting an enforcement policy requiring non-disabled passengers to leave the bus if they failed to comply. 

The Recorder found in favour of Mr Paulley and awarded him £5,500 damages. However, FirstGroup went in appeal before the  Court of Appeal which unanimously allowed the appeal and held that it was not reasonable to hold that FirstGroup should adjust its policy so that its drivers required, rather than requested, non-wheelchair users to vacate a space when it was needed by a person in a wheelchair, and then to positively enforce that requirement with the ultimate sanction being removal from the bus. 

Mr. Paulley, went in appeal to UK Supreme Court against the impugned order.

Judgement of Supreme Court

To read the judgement dated 18 Jan 2017 of  The Supreme Court of the United Kingdom in FirstGroup Plc (Respondent) v Paulley (Appellant) [2017] UKSC 4, click here.

The Supreme Court unanimously allowed Mr Paulley’s appeal, albeit only to a limited extent. Lord Neuberger gave the lead judgment (with which Lord Reed agreed) allowing the appeal but only to the extent that FirstGroup’s policy requiring a driver to simply request a non-wheelchair user to vacate the space without taking any further steps was unjustified. 

Where a driver who has made such a request concludes that a refusal is unreasonable, he or she should consider some further step to pressurize the non-wheelchair user to vacate the space, depending on the circumstances. Lord Toulson and Lord Sumption write concurring judgments. On the issue of the order to be made, this majority declines to uphold an award of damages. Lady Hale, Lord Kerr and Lord Clarke also allow the appeal but they would have restored the order of the Recorder in full, including upholding the award of damages. 

Reasons for the Decision 

[References in square brackets are to paragraphs in the judgment]

Under section 29 of the 2010 Act, as a “public service provider”, FirstGroup must not discriminate against a person requiring its services by not providing the person with the service, and it must make “reasonable adjustments” to avoid substantial disadvantage to disabled persons [20-26]. 

The Recorder’s judgment effectively required a policy that could lead to a non-wheelchair user being ordered off the bus [40-45]. The Court of Appeal was right to reject this. An absolute rule that any non-wheelchair user must vacate the space would be unreasonable: there are many circumstances in which it could be unreasonable to expect a non-wheelchair user to vacate a space, and even more, to get off the bus, even where the space is needed by a wheelchair user [46-48]. 

Even a qualified rule (i.e. that any non-wheelchair user must vacate if it is reasonable) implemented through mandatory enforcement would be likely to lead to confrontation with other passengers (not least where the non-wheelchair user vacating the space affected other travellers) and delay [50-51]. Passengers are not clearly subject to a statutory obligation to comply with a policy relating to the use of the space, and would not appear to be under such an obligation to get off the bus if they fail to do so [52]. 

Even though the hearing in the Court of Appeal had proceeded on the basis that it was not part of Mr Paulley’s case [59], the argument that FirstGroup’s PCP should have gone further than it did, albeit not as far as the Recorder concluded, has more force. FirstGroup cannot be criticised for choosing not to express the Notice in more forceful terms: it was aimed at politely requiring non-wheelchair users to vacate the space; there was evidence that “directive” notices are a less effective means of communication with the public; and the use of specially emphatic language should not determine legal liability in this case [63]. 

The suggestion that the Notice should state that priority of wheelchair users “would be enforced” would be false [64]. However, it was not enough for FirstGroup to instruct its drivers simply to request non-wheelchair users to vacate the space and do nothing further if the request was rejected. The approach of the driver must depend upon the circumstances, but where he or she concludes that the refusal is unreasonable, some further step to pressurise the non-wheelchair user to move should be considered, such as rephrasing the request as a requirement (especially where the non-wheelchair user could move elsewhere in the bus) or even a refusal to drive on for several minutes [67]. 

Lord Toulson agrees [83-85] adding that fresh legislative consideration is desirable [87]. Lord Sumption also agrees albeit with reservations [92]. So far as damages are concerned, Lord Neuberger (with whom Lords Sumption, Reed and Toulson agree) concludes that the Recorder did not specifically consider whether, if FirstGroup had simply required its drivers to be more forceful, there was a prospect that it would have made a difference in this case. It is therefore not possible to conclude that there would have been a real prospect that such an adjustment would have resulted in Mr Paulley not being placed in the disadvantage that he was, and so an award of damages is not possible [60-61]. Lady Hale, Lord Kerr and Lord Clarke dissent in part. 

As the Recorder found, it was reasonable to expect bus operators to do more than FirstGroup did [102-109]. His judgment did not necessarily require ejection of a passenger who refused to move from the bus nor did it create an absolute rule [106]; [129-131]; [137]. Had the practice suggested by the claimant been in force, there was at least a real prospect that Mr Paulley would likely have been able to travel [108]; [138]. This being so, it was unjust to deny Mr Paulley damages [109]; [160]. 

[References in square brackets are to paragraphs in the judgment]