Disability Pension is independent of length of service - Punjab & Haryana HC

Dear Friends,

You don't need a qualifying service to be eligible for disability pension, the P&H High Court has clarified. The Union of India’s defended that the petitioner had less than 10 years of qualifying service required under Central Civil Service (Pension) Rules, 1972 to be eligible for disability pension, which the court rejected.  

Disability pension not linked to length of service, says HC

Saurabh Malik, Tribune News Service

Chandigarh, October 30, 2015

The Punjab and Haryana High Court has made it clear that disability pension has no connection with the length of service and is payable when an employee suffers from disability.

Forty years after a Border Security Force official was invalidated out from service with 100 per cent blindness, the high court also held him entitled to disability pension from the date of discharge.

The court was told that petitioner Amarjit Singh had suffered acute eyesight failure, while he was posted in high altitude area in the Ladkah sector. In December 1974, the Union of India issued a letter claiming that the petitioner was not entitled to pensionary benefits as per the Rules. Subsequently, he was invalidated out from service in February 1975. He was seeking disability pension from the date of discharge but without success.

The Union of India’s case was that the petitioner had less than 10 years of qualifying service required under Central Civil Service (Pension) Rules, 1972. Taking up the matter, the Division Bench of Justice Hemant Gupta and Justice Raj Rahul Garg observed the question of qualifying service arose to earn pension or invalid pension on attaining the age of superannuation under the Central Civil Service (Pension) Rules, 1972.

But the writ petitioner was invalidated out from service on account of medical condition. Such discharge entitled all persons paid from civil estimates to extraordinary pension, which included disability pension.

The bench added: “We find that under the 1972 rules, invalid pension is availed by an employee if he seeks retirement on account of any bodily or mental infirmity.

The case

• Forty years ago, BSF official was invalidated out from service with 100 per cent blindness
• The court was told that petitioner Amarjit Singh had suffered eyesight failure, while he was posted in the Ladkah sector
• In December 1974, the Centre issued a letter claiming that the petitioner was not entitled to pensionary benefits as per the rules

Source: Tribune India 

Bombay HC cites the capabilities of Blind as Solicitors & Advocates to deny claim of tax exemption for Eye Checkup

Dear Friends,

There are two areas worth noting in this judgement. Firstly, the Bombay High Court has indicated that Blindness is no handicap in discharging the duties of a solicitor or an advocate and by that analogy even a judge. Secondly, you may not be able to claim tax exemption for tour expenses even for reasons of an eye test in computing the income chargeable under the head profits and gains from business or profession.

Shot in arm for disability advocates who have been facing extreme resistance from some states & their judiciary who have consistently denied people with blindness the opportunities of being  a judge by obtaining exemption under section 33 of the Disabilities Act. Crazy no?

Here is the news item from TNN:

Lawyer denied tax waiver for eye test done while abroad

Shibu Thomas, TNN | Oct 30, 2015, 01.30AM IST

MUMBAI: A person's eyes are not just used exclusively for professional purposes, said Bombay high court while rejecting a lawyer's claim seeking tax exemption for a foreign tour, which he claimed was a "pre-operative eye check-up".

A division bench of Justice M S Sanklecha and Justice Girish Kulkarni pointed to blind advocates practising in courts.

"Eyes are an important organ of the human body and are essential for the efficient survival of a human being. Eyes are essential not only for the purpose of business or profession but for purposes other than these," said the judges, adding, "We are not persuaded to accept the submission that eyes are required to be exclusively used for the purpose of profession. No evidence has been brought on record to establish that in the absence of investigation and treatment, the applicant would be handicapped in discharging his obligation as a solicitor/advocate. While at this, we cannot resist but point out that in this court itself, we have a couple of visually challenged advocates who are competent in discharging their duties."

The court also cited former advocate general of West Bengal Sadhan Gupta who was visually challenged. "It is therefore clear that the said expenditure as claimed by the advocate is not in the nature of the expenditure wholly and exclusively incurred for the purposes of the profession of the applicant and thus this expenditure cannot be claimed by the applicant to be allowed as deduction in computing the income chargeable under the head profits and gains from business or profession."

The court was hearing a petition filed by advocate Dhimant Thakkar, who claimed tax exemption for the period 1986-87 of an amount of Rs 43,600 for a foreign tour, which he claimed was in connection with preoperative tests. The income-tax department rejected the claim saying the expenses were for a personal reason.

The advocate claimed that but for this treatment he would not have been able to continue with his profession and therefore the expenditure ought to have been allowed as a deduction for professional expenses. The HC disagreed and concurred with the tax department that if the advocates claims were accepted, then "every and all expenses incurred on daily living and food would be allowable as part of tax exemption".

Source: Times of India

Supreme Court of India fumes at Several states silent on implementation of Disabilities Act |

4th Sep, 2015

Bringing into focus the plight of disabled people, the Supreme Court today fumed at several states not filing responses as to steps taken to implement various provisions of the Disability Act.

In April , the apex court had issued notices to the Centre and all states on a plea seeking periodic monitoring of implementation of various provisions of the Disabilities Act. But ten states including Delhi Rajasthan, jharkhand have not yet filed responses.

An angry bench headed by justice Dipak Misra told lawyers representing several states: “let the matter now be posted for October 13. We are giving last chance to all states to file their responses. In the event of further failure strict action will be taken”. The plea states that a majority of citizens belonging to disabled  category have not got any relief even two decades after the rules were passed.

Justice Sunanda Bhandare Foundation, on whose petition the court has been issuing orders for the welfare of the differently-abled since 1998, had moved an application saying that unless there was an effective monitoring system on the lines of Vineet Narain judgment in which the SC is keeping a tab on investigation of various corruption cases and issuing periodic directions, the implementation of the Persons with Disabilities Act, 1995, will merely remain on paper.

Ambar Qamaruddin, the lawyer for the petitioner, pointed out that the court itself had last year observed that only the Centre, some states and the UGC had satisfied it on the implementation of the rules.

A majority of the states were yet to comply with it and thus, the need for a monitoring mechanism.

“Even in last year’s order, the court had said all measures had to be taken ‘positively by the end of 2014’ but nothing had happened,” Qamaruddin submitted.

“Central government, state governments and UTs may be directed to file a quarterly/half yearly status report before the court,” he argued.

The directions pertained to reservation of 1% of identified teaching posts in various schools and colleges for the disabled, jobs in private sectors and PSUs, seats for students in various universities and creating special facilities for differently-abled persons at public places such as railway stations, bus terminus, airports and in trains, buses and aircraft.

Directing that all measures be taken by the end of 2014, the court had in its order in March, 2014, said: “The beneficial provisions of the 1995 Act cannot be allowed to remain only on paper for years and thereby defeating the very purpose of such law and legislative policy.

“As a matter of fact, the role of the governments in the matter such as this has to be proactive. In the matters of providing relief to those who are differently-abled, the approach and attitude of the executive must be liberal and relief oriented and not obstructive or lethargic.

“A little concern for this class who are differently-abled can do wonders in their life and help them stand on their own and not remain on mercy of others.