Andhra Pradesh HC- Disability acquired during employment makes employee entitled to continued alternate employment; Also entitled to backwages & arrears for interregnum period as Corportation failed to dischare its statutory duty

Court: Andhra Pradesh High Court, India

Bench: Hon'ble Sri Justice Ravi Nath Tilhari

Case Number: Writ Petition No. 5486 of 2011

Case Title: Sri Ch.S. Rajeswara Rao Vs. Govt., of A.P. rep. by Principal Secretary, Transports Department and others.

Date of Judgement: 14 September 2022

Judgements cited/reffered: 

(a) Bhagwan Dass and another vs. Punjab State Electricity Board [2008(1) SCC (L&S) 242]

(b) K. Moses vs. A.P.S.R.T.C [W.P.No.3031 of 2008 decided on 01.11.2010]

(c) Laxmi Kant Sharma vs. State of U.P and 5 others.  [2018 LawSuit (All) 1355]

(d) Andhra Pradesh State Road Transport Corporation rep., by its Managing Director and others vs. B.S. Reddy

(e) Kunal Singh Vs. Union of India (SC judgement 13 Feb 2003 in Appeal (civil) 1789 of 2000)

Brief

The petitioner was working as a Conductor in the Corporation. He was appointed as a casual labour in April, 1984 and his services were regularized in the year 1987. While he was on duty, he met in an accident and undergone a surgery of spinal cord in which his two discs were removed. On the ground of medical unfitness he was retired from the service on 21.07.2001. 

Challenging the order dated 21.07.2001 the petitioner filed Case No.165 of 2005 before the State Commmissioner for Persons with Disabilities. The Commissioner vide order dated 25.09.2006 allowed the said case, setting aside the impugned proceedings dated 21.07.2001 and directed the Corporation to consider the petitioner’s claim de-novo in the light of Section 47 of the Act, 1995. The petitioner was, therefore continued as conductor and his services were utilized at Bus Pass Station, Governorpet-I Depot vide orders dated 15.02.2007 and 21.02.2007. 

The present dispute is for payment of salary from 21.07.2001 upto 21.02.2007 during which period the petitioner remained out of service on account of his retirement imposed by the Corporation on the ground of medical unfitness. 

The petitioner submitted that in view of the statutory provisions of Section 47 of the Act, 1995, the petitioner ought to have been offered alternative employment to some other post with the same pay scale and service benefits. The petitioner is entitled to receive the salary for the interregnum period.

The Bench highlighting the benevolent provisons of section 47 said, "Section 47(1) is clear in terms that "no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service. The proviso to Section 47(1) in fact confers a right on an employee, who acquired disability and was declared unsuitable for the post he was holding, for being shifted to some other post with the same pay scale and service benefits. By that proviso, not only the alternate employment but also the pay scale and the service benefits are also protected."

The bench further said, "so far as the payment of arrears of salary for the period in question is concerned, the petitioner was not at fault for not discharging the duties during the interregnum period for which the corporation was responsible as it failed to discharge its statutory duty. The petitioner cannot be deprived of the salary for the period claimed and cannot be made to suffer for the fault of the corporation. Under the Act, it was the statutory duty of the Corporation not to throw the petitioner out of service but to provide the alternative employment to some other post with the same pay scale and service benefits and if there was no such post available the supernumerary posts should have been created.

Citing the case of State of U.P Vs. Dayand Chakravary and others [(2013) 7 SCC 595], the Hon’ble Apex Court held that the principle of ‘no work no pay’ shall not be applicable to such employee who is prevented by the employer from performing his duties as the employee cannot be blamed for having not worked.

Allowing the writ petition, the bench directed the respondent Corporation to pay full salary to the petitioner for the period w.e.f  21.01.2001 upto 21.02.2007 after calculating the same as per the pay scale applicable to the post of Conductor for the relevant period. It further directed that the arrears shall be paid within a period of two months from the date of production of copy of this judgment before the respondent-Corporation along with simple interest thereon @ 6% p.a w.e.f 21.02.2007 upto the date of payment. If consequent upon the addition of the increments as aforesaid for the aforesaid period, some more arrears of salary become due to the petitioner for subsequent period also i.e after 21.02.2007, the same shall also be paid to the petitioner after adjusting the amount of salary paid to the petitioner, within the same period as aforesaid.

Read the judgement embedded below:

Delhi HC clears the way for a disabled doctor to appear in the PG medical counselling

Court: Delhi High Court

Bench: Mr. Justice Sanjeev Narula

Case No.:    W.P.(C) 12653/2022

Case Title:  Laxmi Vs. Union of India & Ors

Date of Order: 14.09.2022

Next Date of Hearing: 22 Nov 2022

Case Brief:

Ms. Laxmi, a disabled MBBS student who was declared ineligible to pursue a course at the postgraduate level has been given the clearance by Delhi High Court to appear in the PG medical counselling.

The petitioner, who completed her MBBS course from Baba Raghav Das Medical College, Gorakhpur has polio in her lower left limb.  But, the Safdarjung Hospital declared her 100% disabled and rejected her to get a clearance certificate. For NEET PG counselling after completion of MBBS, PwD students need a certificate from one of the specific centres.

Laxmi went to the Centre Govt-run Safdarjung Hospital onAugust 24, 2022 to appear for the disability test. She uses an orthotic caliper, owing the polio. However,  the examiners asked her to remove it and walk, which she couldn't do. thus she was declared 100% disabled. As per the existing rule, a PwD candidate with 40-80% disability is allowed for PG courses.

She thus filed a petition in the Delhi High Court. The single bench presided  by Hon'ble justice Sanjeev Narula,  directed AIIMS to constitute a board of experts to assess the disability of the MBBS doctor. A team of three doctors was constituted to examine her who opined as under:

"Candidate Ms. Laxmi was assessed without and with lower limb orthosis. She was found to have improved ambulation and stability with Knee Ankle Foot Orthosis (KAFO) with compensation for shortening in left lower limb. With orthosis the disability becomes less than 80% (Eighty Percent). She would be able to perform the functions expected from a post graduate specialist doctor with use of an appropriate and well fitting orthosis."

Similar ableism was on display in a recent case decided by the Allhabad HC, where a candidate who used tri-cycle was forced to ride a bicycle which was the essential qualification for the post. The candidate had expressed that he could ride a tricycle with equal efficiency as a cycle, however, the albleist Principal did not even consider his candidature. Though no major relief came his way due to a prolonged litigation and lapsed time, the court however, decided that it was clearly a case of violation of human dignity and awarded a compensation of Rs. 5 lakh to the affected petitioner.

In the instant case, since some of the reliefs sought in the petition survived and required consideration, the court isssued notices to respondents with next date of hearing as 22 Nov 2022. The matter was successfully argued by Adv Gaurav Bansal, for the petitioner.

Earlier the Doctors with Disabilities : Agents of Change, a group of Indians Health Professionals with Disabilities shared on its facebook group  on 03 Sep 2022 the detailed timeline of challenges faced by Dr. Laxmi due to #AbleismInMedEd and revelations from the responses to the RTI filed by Dr. Satendra Singh, a doctor with disabilities himself at link here reproduced below: 

"An MBBS lady doctor with 45% disability in the left lower limb according to Govt of India's UDID (and another disability certificate from prestigious KGMU) was declared 100% disabled by Safdarjung Hospital's medical board for NEET PG headed by Dr Suman Badhal (Prof PMR), Dr Ajay Gupta (Prof PMR), Dr Arun Kumar Pandey (Astt Prof, Ortho) and thus crushed her dream to do specialization. There may be some doubt about assigning a percentage between 40-50 or 30-40, but declaring someone 100% disabled with only polio in one leg is unjustified. 

The VMMC & Safdarjung Hospital medical boards have been dubbed "harassment centres" by candidates with disabilities, and there is evidence that this hospital is fond of declaring candidates "100% disabled". It is highly unlikely to get a 100% disability certificate until and unless both limbs are involved.

2020: A candidate from Meerut with a 50% disability because of polio (no braces) was declared 100% by this board & denied admission. Poor person could not file case.

2019: A candidate from Bijnor with same 50% disability because of polio was also declared 100% & rejected. He studied again, cleared NEET UG, went to a different centre & now doing MBBS third year.

2019: A MBBS doc on crutches (50% disability) working as a JR in the PMR Dept of RML Hospital was declared ineligible in NEET PG after declaring > 90% at Safdarjung. He is now doing MD Dermatology in Rajasthan.

2019: Another lady doctor with MBBS was denied admission. "I did everything they asked for, including sitting on the floor and crossing my legs, despite delivering a baby two weeks ago". Dejected, she went to another centre, got admission and finished MD Pediatrics successfully last week and awarded by State Govt.

Let's see the competence of these "experts". Dr Satendra Singh filed an RTI asking what guidelines they follow. My RTI Question No. 7: Kindly provide the details of all the tests done by doctors to assess NEET candidates with locomotor disabilities. Which guidelines are followed by them? Please provide a copy of that as well. The response by PMR Faculty as CPIO: "Please refer to standard text books of Medicine on guidelines." The gazette guidelines on assessment exist but Prof Gupta follows some ‘textbook of medicine’ and he is a constant in all of these rejections. Moreover, this competent board is not even aware of how to issue this certificate. After Dr Satendra Singh's PIL, the National Medical Commission issued an addendum that those with more than 80% disability may be considered eligible on functional competency with the help of assistive devices. There is no mention of that in the issued certificate. This premier hospital does not even have an Equal Opportunity Policy mandated under the law (See RTI response).

For how long will such unprofessional and unethical practices go unchallenged? The Delhi High Court has already issued directions for re-assessment at AIIMS, Delhi for this woman doctor, but what about many others who have been constantly rejected without rationale after successfully doing MBBS and who can not afford to go to court? The objective of these screening centers should be to assist candidates with disabilities and provide reasonable accommodations, as being done by the General Medical Council of the UK. However, they choose to harass their own fellow doctors."

Read the order embedded below:

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

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

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

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

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

Date of Order: 08 Sep 2022

Next Date of Hearing: 09 Nov 2022.

Brief Case:

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

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

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

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

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

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

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

Matter is now listed on 09 Nov 2022. 

Read the Order dated 08 Sep 2022 embedded below:

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

Court: Allahabd High Court, UP, India 

Bench: Hon'ble Saumitra Dayal Singh,J.

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

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

Date of Order: 31.08.2022

Case Brief 

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

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

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

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

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

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

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

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

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

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

Court Order

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

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

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

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

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

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

Read the order embedded below: 

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

Court:             Madras High Court, India

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

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

Filed on :        03-08-2022  

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

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

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

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

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

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

MoRTH directed by CCPD Court to remove bottlenecks in verifying vehicle ownership type by NHAI for issuing Exempted Fastag to Persons with Disabilities.

Court:                 Chief Commissioner for Persons with Disabilities

Presided By:     Ms. Upma Srivastava, Commissioner

Case No.:            13203/1092/2022

Case Title:          Githin Madhu Vs. The Chairman, NHAI & Anr.

Date of Order:   24.08.2022

Case in Brief:

In the instant case,  Mr. Githin Madhu- a person with vision impairment had applied online along with all the requisite documents for Exempted FASTag for his vehicle on the website https://exemptedfastag.nhai.org/Exemptedfastag/, the official website of National Highways Authority of India (NHAI). The regional office of NHAI in Kerala, however, rejected his application. 

When the complainant contacted the regional office on phone, he was told to him that NHAI doesn't have facility to verify the data base of RC issued by the Motor Vehicles department (parivahan database) to check the ownership as divyangjan online. Also the  physcial copy of the Vehicle RC (Registration Certificate) do not carry the information about ownership type.

The Court felt that this was precisely due to mismanagement and  lack of coordination between the NHAI and the Ministry of Road Transport, Govt. of India which made persons with disabilities to run from one office to the other merely to prove their ownership type of vehicle as Divyangjan and in turn were facing harassment in getting the benefit granted to them by Govt. of India. 

The exempted FASTag is provided to persons with disabilites in two cases:

(a) The vehicle is registered as Ownership type as "Divyangjan".

(b) The vehicle is designed, constructed or  adapted for the use of persons with disabilities (divyangjan)

During the course of hearing, the Exempted FASTag was provided to the complainant and the complainant informed that his grienvance is settled.  However, the court felt that the issue that still persist is related to trouble that persons with disabilities have to face in order to obtain exempted category FASTag.  It was also shared that while vehicle designed  or constructed for use by persons wiht disabiliteis are registered in RC as "Adapted Vehicles"  (formerly Invalid Carriages), however, for vehicle registered under ownership as Divyangjan this status was not mentioned in the RC. Thus the officials of NHAI were not able to verify the ownership status  from the RCs of the vehicle and they did not have access to the parivahan data base to very the same, resulting in rejection of the applications made by such candidates with disabilities.

Considering the facts and for making the system more accesssible for persons with disabilities, the court thus passed an order endorsing a copy to the Ministry of Road Transport and Highways,  to grant access to the online portal  www.vahan.parivahan.gov.in to NHAI so that the Ownership Type status of Divyanjan  could be verified online for the purpose of issuing FASTags to persons with disabilities and they are not made to run from one office to the other to prove their vehicle ownership type.  

Court has sought an Compliance Report from the Ministry of Transport & Highways within 3 months of the passing of the order.

Read the order embedded below:

Court of CCPD directs Practo Technologies to make its website & App fully accessible for persons with disabilities within 6 months, also holds that Min. of Health is the domain regulator

Court:               Chief Commissioner for Persons with Disabilities, India

Presided by:     Ms. Upma Srivastava, Commissioner 

Case No.:         13205/1102/2022

Case Title:        Rahul Bajaj Vs. Practo Technologies Pvt. Ltd. [PTPL] & Others.

Date of Order:  24 August 2022

Next Date of Hearing cum Compliance:  20 September 2022

Subject: Inaccessibility of Website, Mobile and Tablet and non-compliance with the standards of accessibility as prescribed under rules.

Brief: 

The Court of Chief Commissioner for Persons with Disabilities in this important order stressed that the  private establishments are also bound by the provisions of the Rights of Persons with Disabilities (RPwD Act) 2016. 

The  Court of CCPD was hearing a complaint filed by a lawyer with 100% visual impairment, Rahul Bajaj, on March 22, 2022 regarding the website and app being inaccessible and not in compliance with accessibility standards. The complainant  had submitted that the home screen of the app was unorganised and inaccessible with screen reading software, some buttons were not labelled and others had “nonsensical labels” like “tertiary half one image label”. Complainant also said Practo was not in compliance with Section 46 of the Rights of Persons with Disabilities (PwD) Act, 2016, which sets a two-year timeline for service providers “whether government or private” to provide services in accordance with Central government accessibility rules.

The CCPD Court  ordered Practo, the online healthcare service provider, to make its website and app fully accessible for the disabled, affirming that legal requirements and guidelines on accessibility applied to private companies and establishments as well.

The Court recommmended that Respondent No. 1, i.e. Practo Technologies Pvt. Ltd. shall comply with the government guidelines and shall make necessary modifications within 6 months and not later than 9 months from receiving the copy of this Recommendation Order, to its app and other Information & Communication Technology platforms to make such platforms accessible for divyangjan.

Practo   Practo  in its reply had denied the allegations and submitted that it was not bound by the guidelines that require establishments to provide accessible services, however, it expressed willingness to make its platform accessible for persons with disabilities and sought nine months to make the changes as it involved “severe engineering efforts”.

Referring to Section 46, the court said: “Mere reading of this Section leaves no doubt that the provision is applicable on private establishments as well.” The court also said that Rule 15 of the Rights of Persons with Disabilities Rules, 2017 made standards for physical environment, transport and ICT mandatory for every establishment.

Court of CCPD also recommended that the Director-General of Health Services under the Health Ministry should ensure that Practo was accessible for Persons with Disabilities being the domain regulator under the law. 

The court has fixed the next hearing for compliance and to monitor the implementation of the statutes related to accessibility as 20 Sep 2022, considering the wider social aspect of the issue of accessibility. 

Read the order embedded below:

Delhi HC orders appointment of a Person with Visual Disability to IAS with consequential seniority

Court: Delhi High Court

Bench: Justice Sanjeev Sachdeva and Justice Tushar Rao Gedela

Case No.: WP(C) 572 of 2020

Case Title: Vishv Mohan V. DoPT & Others

Date of Judgement: 22.08.2022

Brief

While ordering Mr. Vishv Mohan, a candidate with visual impairment  of 2015 batch, to be appointed to the Indian Administrative Service (IAS) and setting aside Appellate Medical Board Report as being inconclusive, the Delhi High Court observed that a welfare State is expected to create conditions which are conducive to citizens with disabilities by providing them avenues for public employment under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The  State is enjoined to create conditions and opportunities for the welfare and betterment of the citizens with disabilities and those who are differently abled.

"The Central Government had enacted the said Act to ensure that the citizens falling in this category are not deprived of their rightful means of livelihood in respect of public employment. It is with a view to give impetus to the beneficial provisions of the said Act, that the Central Government and the State Governments created various avenues for public employment of such differently abled citizens." said the Court.

The Court dealt with a plea filed by a candidate with visual  disability for recruitment of All India Service for the year 2015.  The petitioner had challenged the report of the Appellate Medical Board of Dr. Ram Manohar Lohia Hospital, conducted in compliance of High Court's order whereby the Medical Board consisting of three senior doctors had concluded that the Petitioner was having visual disability of 20% only. Whereas several other competent medical boards and one medical board of AIIMS Delhi had also ceritified him in the past with more than 60% visual disability. 

The Court expressed its astonishment as to how the AIIMS Delhi could assess them 20% disability and 60-75% disability in two different sittings.

While there was no dispute about the fact that the Petitioner suffered from visual impairment namely 'high myopia with Isometropic Amblyopia', the Court dealt with the issue as to whether the Petitioner was suffering from a visual impairment which would be greater than 40%. Having 40% visual impairment would entitle the petitioner to be treated as a visually disabled category candidate.

It was the Petitioner's case that he was a meritorious candidate who had secured a total of 828 marks in the examination of the Civil Services Examination 2014 with All India Rank of 1173 and 5th rank holder in the disabled category.

Perusing the consistent medical reports of past several years wherein his disability ws assessed higher than 60% by competent medical boards in the disability certificates issued to the petitioner, the Court was of the view that the Petitioner fell within the definition as contained in sec. 2(b)(ii) of the PWD Act.

The Court was of the opinion that the Petitioner was not only a person with visual impairment to the extent of 60% but also a "brilliant candidate" who had secured 5th rank in his own category and was also positioned at All India Rank No.1173.

"In such circumstances, depriving the Petitioner of public employment, that too, at the level of Indian Administrative Services, on such inconclusive medical report dated 17.12.2018, is not only unfair, unjust but also whimsical and arbitrary. We hold so," the Court observed.

Setting aside the impugned Appellate Medical Board Report, the Court directed the respondents to take the assessment of the percentage of disability of the Petitioner at 60% and also consider him qualified so far as the medical criteria is concerned.

"As a consequence, Respondent No.1/DoPT is directed to allot the cadre and appoint the Petitioner in Indian Administrative Service (2015 Batch) considering him eligible in so far as the Central Civil Examination, 2014 is concerned with all consequential benefits in respect of seniority and promotion on notional basis. Since the Petitioner  did not discharge any duties, we refrain from granting any back wages," the Court added while disposing of the petition in favour of the petitioner. 

Read the embedded order dated 22 Aug 2022 below:-

Calcutta HC: RPwD Act shifts focus from protection to empowerment [Judgement Included]

High Court: Calcutta HC

Bench/ Judge:  Justice Moushumi Bhattacharya

Case Title: WPA 6043 of 2022, Dr. Arun Sarkar Vs. The State of West Bengal & Ors. 

Date of Judgement/Order: 08 August 2022

The Calcutta High Court  quashed a resolution passed by the Governing Body of a College refusing to consider a person with physical impairment for appointment in the disability category, finding it to be in violation of the Right of Persons with Disabilities Act, 2016.

The court observed that the 2016 Act which replaced the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 was enacted to empower persons with disability rather than protect them. The Single Judge also made significant observations on the nature of the 1995 Act and the 2016 Act, adding that in the 2016 Act, the canvas was more about effective integration of persons with disability and less about recognition of a physical condition as a limiting factor.

"The 2016 Act is a declaration of rights and opportunities to persons with disability. While the idea of freedom from the physical limitations germinated in the 1995 Act, in 2016 the focus shifts from protection of persons with disability to empowerment; recognition of limitations to removing barriers; the right to participation to affirmative action. In essence, the statute facilitates the movement of the community from the margins to the mainstream of opportunities.", the court observed.

The petitioner was a  person with benchmark disability with a 80% disability as a result of the amputation of his upper limbs following an accident. He served as the Assistant Professor at Kandi Raj College for seven years and thereafter sought an appointment in a college nearer to his residence finding it difficult to travel 480 km on a daily basis. He was soon recommended by the West Bengal College Service Commission for an appointment at the Acharya Girish Chandra Bose College in the Disability category. However, the Governing Body of the College passed a resolution asking the Commission to reconsider its recommendation of the petitioner as a candidate.

Aggrieved by this, the petitioner filed a petition before the High Court which came to be dismissed by a Single Judge in 2020 for want of requisite pleading. However, liberty was granted to the petitioner to challenge the decision of the Governing Body. Accordingly, he moved another petition.

Counsel for the petitioner submitted that the impugned decision of the Governing Body culminated in the College refusing to issue the letter of appointment to the petitioner and that it was thereby arbitrary, discriminatory and in violation of the 2016 Act.

Counsel  for the college submitted that a mere recommendation for appointment to a post does not confer any right on the petitioner to be appointed to such post. It was also argued that since the advertisement for the post was published by the College Service Commission in 2015, the facts would be governed by the 1995 Act and not the 2016 Act.

While deciding the question of whether the petitioner's case would be governed under the 1995 Act or the 2016 Act, Justice Bhattacharya recalled that Section 102(2) of the 2016 Act provides for a saving clause with reference to anything done or any action taken under the 1995 Act as deemed to have been done or taken under the corresponding provisions of the 2016 Act. "Hence, even if the advertisement was published by the Commission on 30th June, 2015 before the 2016 Act came into force, the action of the Commission and the College taken on the basis of such advertisement would continue under the provisions of the 2016 Act." observed the Judge.

Moreover, the Single Judge found that the objects of the 2016 Act make it evident that it is a piece of beneficial legislation for preserving the rights of persons with disabilities and empowering them with equal opportunities. "If this be the case, attempting to slot the petitioner into one legislation to the exclusion of the other would be an unnaturally restrictive vision of the bridge between the two Acts and their commitment to inclusivity," the Court observed.

Analysing the definition of 'disability' under the 1995 Act and the 2016 Act respectively, the judge observed, "While the 1995 Act associated disability as a condition from birth,  the 2016 Act had a more inclusive definition for the same, which included evolving forms of disability within its fold."

Either way, it was found that in a legislation intended to benefit persons with disability, a definition of disability cannot be frozen with the repealing of the 1995 Act particularly when the whole object of the 2016 Act was to include broad-spectrum disabilities which were not within the recognition of the framers of the earlier statute and to empower persons with disabilities to effectively integrate with society.

In any event, the cause-effect factor cannot be discounted to limit spectrum disabilities just because the petitioner did not have 80% disability from birth, the Court held. Therefore, it was found that the petitioner was a person with disability as defined under the Acts.

The Court then observed that the objective of the 2016 Act was full participation of persons with disabilities and empowering them to realize their full potential. The Judge also found it essential to analyse the definition of 'barrier' as given under Section 2(c) - any factor including communicational, cultural, economic and environmental impeding the full participation of persons with disability in society.

Thus, it was clear that the goal of the 2016 Act was to remove barriers in all forms which would frustrate the object of the Act. Viewed from this angle, it was clear that the decision of the Governing Body, in essence, revealed a set of prejudices which squarely fit into the definition of a  "barrier". The Court added that this was also a reflection of a mindset barrier and that it falls foul of the statutory mandate on all counts.

"The impugned decision is opaque, reflects an intransigent mindset and a systemic obstacle to the personal and intellectual growth of persons with disability. The decision is regressive and chains the freedoms and opportunities of the community." observed the judge.

The court held that the Governing Body had a duty to consider the import of the provisions of the 1995 Act and the 2016 Act which imposed a duty on the Body to act in terms of the mandate of the law which it failed to do.

"There cannot be any denial of the fact that the Governing Body of the College had a duty to act responsibly with sensitivity, having regard to the statutory position governing persons with disabilities. It is all the more surprising that the Governing Body directed the Chairman and Secretary of the College Service Commission to replace the recommendation of the petitioner "by another one with same category" (the words are further indicative of the mindset of the Governing Body)." expressed the judge.

The impugned decision also gave rise to serious civil consequences on the petitioner's rights in specific and persons with disabilities in general, hence the impugned decisions are denounce-worthy as per the 1995 and 2016 Acts and being in direct contradiction with the objectives sought to be achieved by the statutes.

While the Court may not appropriate unto itself the power of recommending the petitioner for appointment, the Court deems it fit to direct the Governing Body to arrive  at a fresh consideration of the facts before it and revisit the issue with due regard to the statutory mandate. The resolution taken by the Governing Body was quashed and it was directed to come up with a fresh decision within 8 weeks. The appeal was thus partially allowed.

Supreme Court of India : Disabled Employee Should Not Be Forced To Forfeit Seniority For Choosing Posting Place under a beneficial circular [Judgement Included]

Court: Supreme Court of India

Bench: Justice Indira Banerjee and Justice J.K. Maheshwari

Caste Title: Net Ram Yadav Vs. The State of Rajasthan & Ors. 

Date of Judgement: 11 Aug 2022

Summary of the Case

A person appointed under quota for Persons With Disabilities was allowed to choose his place of posting as per a beneficial circular issued by the Government- Later, in the state seniority list, his seniority was downgraded for having opted for transfer - The State relied on a provision in the service rules as per which a person will choose seniority within a district on transfer as per his request.

The Court held that provision cannot alter state wise seniority - The Court  also held that the benefit given to disabled persons as per the circular cannot be rendered otiose by imposing conditions.

Rights of Persons With Disabilities Act 2016 - The marginalization of the persons with disabilities is a human rights issue, which has been the subject matter of  deliberations and discussion all over the world. There is increasing global concern to ensure that the disabled are not sidelined on account of their disability (Para 26) 

Rights of Persons with Disabilities Act 2016 - Furthermore, the disabled are entitled to the fundamental right of equality enshrined in Articles 14 to 16 of the Constitution of India, the fundamental freedoms guaranteed under Article 19 including the right to carry out any occupation, profession, the right to life under Article 21, which has now been interpreted to mean the right to live with dignity, which has to be interpreted liberally in relation to the disabled (Para 30)

Rights of Persosn with Disabilties Act 2016 -One of the hindrances/disadvantages faced by the physically disabled persons is the inability to move freely and easily. In consideration of the obstacles encountered by persons with disabilities, the State has issued the said notification/ circular dated 20th July 2000 for posting disabled persons to places of their choice, to the extent feasible. The object of this benefit to the physically disabled is to, inter alia, enable the physically disabled to be posted at a place where assistance may readily be available. The distance from the residence may be a relevant consideration to avoid commuting long distances. The benefit which has been given to the disabled through the Circular/ Government Order cannot be taken away by subjecting the exercise of the right to avail of the benefit on such terms and conditions, as would render the benefit otiose (Para 31)

The case:

A bench of Supreme Court ruled that disabled employees can’t be forced to forfeit seniority for choosing a posting under the beneficial circular. The circular in question was issued by the Finance Department of the Rajasthan Government. It directed the appointing authorities to consider the posting of persons with disabilities at or near the place for which they opt at the time of appointment.

A bench comprising Justice Indira Banerjee and Justice JK Maheshwari opined that while the physically disabled appellant was appointed in 1993, which was before the Circular was passed in 2000, having regard to the object of issuance of the Circular, which was to enable handicapped employees to opt for posting at a convenient place, the benefit of the circular would be extended even to those candidates who were appointed before issuance of the Circular.

Briefly, the facts of the case are that the appellant, a disabled candidate of the "OBC" category, was selected as Senior Teacher under the Education Department of the Government of Rajasthan, Deeplana in Hanumangarh, District Bikaner, through a direct competitive examination. However, Deeplana, where the Appellant was posted was located at a distance of about 550 kms away from Behror, the place of residence of the Appellant in Alwar District. As per a Circular issued by the Finance Department of the Rajasthan Government, all appointing authorities were directed to consider the appointment/posting of persons with disabilities at or near the place for which they opt at the time of appointment/posting. After the issuance of Circular, the appellant made a representation to be transferred to his home district Alwar, considering his physical disability.

Accordingly, the Deputy Director of Education (Secondary) transferred the Appellant to Alwar. However, the transfer to his home district entailed a down-gradation in his seniority. 

In 2016, the Appellant was promoted to the post of Junior Lecturer and posted at the Government Aadarsh Senior Secondary School at Nangalkhodia, Behror, Alwar. In 2017, the temporary eligibility list of qualified teachers for promotion to the post of Head Master was published and the name of the Appellant did not feature in the list as his name had been deleted from the the State and Divisional level seniority list in 2007 and as a result, had been changed in the seniority list from 870 to 1318. 

The Appellant filed a Writ Petition before the Single Judge of the Jaipur Bench of the High Court of Judicature for Rajasthan, challenging the downgrading of his seniority. However, the same was dismissed. 

Thereafter, he appealed to the Division Bench, which also dismissed his appeal based on Explanation to Sub-Rule (10) of Rule 29 of the Rajasthan Educational Subordinate Services Rules, 1971 (the Explanation). As per  the said Explanation, when an employee is transferred to a district based on his request, he should be placed below the junior most person in the district.

Here, the court opined that the actions of the Respondent-Authorities ex facie violated Articles 14 and 16 of the Constitution of India. On a perusal of the Explanation, the court stated that the said explanation applied to employees in general to discourage transfers on request and that it affects only the district-wise seniority. The Explanation will not alter state level seniority.

The court, acknowledged that the Appellant was appointed in 1993, long before the Circular for appointment/posting of persons with disability at or near the place of their choice was issued in 2000. However, it stated that having regard to the object of issuance of the Circular, which was to enable handicapped employees to opt for posting at a convenient place, the benefit of the circular had to be extended even to those candidates appointed before issuance of the Circular.

Accordingly, the court noted that exclusion of the benefit of the Circular to disabled employees already in employment at the time of its issuance, would violate the fundamental right of those employees to equality under Articles 14 and 16 of the Constitution of India.

Fundamental rights of disabled persons

While opining upon the marginalisation of people with disabilities, the court highlighted that the United Nations Convention on the Rights of Persons with Disability (UNCRPD), which is aimed at protecting the human rights and dignity of persons with disability, was adopted to ensure inherent dignity and individual autonomy of persons with disability. The court underscored that the right of nondiscrimination under the UNCRPD, would include reasonable accommodation and/or concessions for full and effective participation and inclusion in society. Since UNCRPD had been ratified by India, the State was thus obliged to give effect to the UNCRPD.

The court further stated that– "Furthermore, the disabled are entitled to the fundamental right of equality enshrined in Articles 14 to 16 of the Constitution of India, the fundamental freedoms guaranteed under Article 19 including the right to carry out any occupation, profession, the right to life under Article 21, which has now been interpreted to mean the right to live with dignity, which has to be interpreted liberally in relation to the disabled."

While noting that one of the hindrances/disadvantages faced by the physically disabled persons was the inability to move freely and easily, the court held that the object of the Circular issued for posting disabled persons to places of their choice was to enable the physically disabled to be posted at a place where assistance may readily be available. Further, the distance from the residence was s relevant consideration to avoid commuting long distances. The court stated that–

"The benefit which has been given to the disabled through the Circular/Government Order cannot be taken away by subjecting the exercise of the right to avail of the benefit on such terms and conditions, as would render the benefit otiose...Both the Single Bench as also the Division Bench of the High Court have overlooked the scope and ambit of the Explanation which has no application in the State to seniority.

Supreme Court stated that “the High Court should have been more sensitive and empathetic to the plight of a physically disabled. The High Court erred in law in overlooking the difference between physically disabled persons impaired in their movement and normal able-bodied persons. The High Court failed to appreciate that treatment of unequals as equals ignoring their special needs violates Article 14 of the Constitution.”

In view of the above, The Supreme Court allowed the appeal and directed the respondents to restore the seniority of the Appellant in the State to the original position, taking into account the service rendered by him in Hanumangarh.

Read the Judgement embedded below: