Court judgements: Delhi High Court
Vikas Gupta Vs Union Of India (UOI) and Anr.
Decided on: 15. 02. 2012
Judge: Rajiv Sahai Endlaw
This petition was filed in public interest to keep the maximum sum assured for disabled persons at par with non-disabled persons and to reduce the premium for disabled persons by bringing it at par with that for non-disabled persons in Postal Life Insurance.
All India Confederation of the Blind Vs Ministry of Railways
Decided on: 07. 03. 2012
Judge: Rajiv Sahai Endlaw
The petitioner felt dismayed by reading the advertisement for recruitment of Group „D‟ staff in the Northern Railway. It did not provide any reservation for Physically Handicapped persons though the Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1955 (hereinafter referred to as „the Disabilities Act‟) . This prompted the petitioner to file the instant petition, in the nature of Public Interest Litigation questioning the non-provision of reservation to the PH persons.
The General Manager Northern Railways Vs. Dharam Pal
W.P. (C) 11134/2004
Decided On: 19.05.2010
Judge: Rajiv Sahai Endlaw, J.
The petitioner, when working for the respondent, started suffering from deteriorating eyesight that the petitioner alleges started on the job. The petitioner was then dismissed as he was seen as unfit for duty. Thus, he filed a petition against the order that states his dismissal.
Lalit and Ors. Vs. Govt. of NCT and Anr.
W.P. (C) 3444/2008
Decided On: 07.05.2010
Judge: S. Muralidhar, J.
The petitioners are members of a school for the blind run by the respondent. They were given an order of expulsion, which they are fighting with this petition.
Ms. Kanchana Narasimhan Vs. University of Delhi and Ors.
W.P. (C.) No. 1235/2007 and C.M. No. 12771/2008
Decided On: 11.01.2010
Judge: S.N. Aggarwal, J.
The petitioner, a visuall handicapped person, applied for a position that was opened up by the respondent, but failed to pass the exam. The petitioner then petitioned for the job citing the Persons with Disabilities Act 1995.
Shri Ankit Gautam Vs. State(Govt. of NCT) and Anr.
W.P.(C.) No. 10751/2009
Decided On: 10.09.2009
Anil Kumar, J.
The petitioner, who is 100% blind, took a test for a position offered by the respondent. However, the results were delayed, but the respondent did not notify the petitioner of the change. Thus, when the assigned due date for the results came, he could not find his name in the list and missed the deadline for the next step in the application process.
Than Singh Chabra S/o Sh. Mangat Singh Vs. Indian Oil Corporation Ltd. and Ors.
W.P.(C) No. 1424 of 1999
Decided On: 03.07.2009
Judge: Suresh Kait, J.
While the petitioner was working for the respondent, he started suffering from deteriorating eyesight. He was given another positione, but was not happy with it and represented to his department, which yielded no results. During this time, he also acquired a letter from the respondent that stated that he was under suspension and pending enquiry due to unruly behaviour. Aggreieved, he decided to take this matter into court.
New India Assurance Co. Ltd. Vs. Pratibha Shrivastava and Ors.
Decided On: 23.03.2009
Judge: J.R. Midha, J.
The appellant is challenging the decision of the court to award compensation to the family of a deceased blind man who was killed in an auto accident that involved a vehicle insured by the appellant.
National Federation of the Blind v. Union of India
156 (2009) DLT 446
Writ Petition (C) No.15828/2006
Decided On: 19.12.2008
Delhi High Court
Judges: Ajit Prakash Shah, C.J., and S. Muralidhar, J.
Facts: National Federation of the Blind , an apex body working for the protection of the rights of the visually challenged, has filed this petition in public interest to highlight the discrimination of the blind and low vision persons by virtually excluding them from the process of recruitment to government posts in violation of the scheme of reservation contained in Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The grievance of the petitioner is that the respondents have failed to provide reservation to the blind and low vision candidates in accordance with Section 33 of the Disabilities Act in all its recruitments right from 1996 till date.
Held: The court issued the following directions in order to ensure proper implementation of reservation policy for the disabled and to protect their rights:
i.We direct the respondents to constitute a committee consisting of the Chief Commissioner for disabilities (Chairman), Joint Secretary, Department of Personnel & Training, Joint Secretary, Ministry of Social Justice and Empowerment, Joint Secretary, Department of Public enterprises, and Secretary, Staff Selection Commission to do the following acts in terms of this order:
(a) To solicit information with regard to recruitments made by departments/public sector undertakings/government companies from the date when the Disabilities Act came into force in 1996 and to work out backlog of vacancies for the disabled on the total cadre strength in different establishments within one month from the date of this order.
(b) To undertake special recruitment drive by organising centralised recruitment against backlog so worked out so as to fill up the vacancies by utilising at least 50% of the vacancies available with the respective establishments for this purpose only.
(c ) To organise further special recruitment drive as required so as to fill up the remaining backlog of vacancies by 31st December, 2010.
ii. The respondent is further directed to issue instructions to all the departments/public sector undertakings/government companies as well as recruiting agencies not to undertake recruitment for any department/public sector undertakings/government company unless the departmental/public sector undertaking/ government company makes provisions for reservation for persons with disabilities in terms of the order of this Court and a clearance is granted by the Committee headed by the Chief Commissioner for Disabilities.
W.P. (C) No. 2040/1995
Decided On: 04.07.2008
Judges: A.K. Sikri and Vipin Sanghi, JJ.
The petitioner contends that the teachers that are teaching in the petitioner's schools for the viually handicapped are not payed enough by the respondent when compared to teachers in other schools for the visually handicapped.
Union of India v. Jagmohan Singh and Charman, Railway Board v. Northen Railway Physically Handicapped Employees Welfare Association
[2008 (116) FLR 676]
Writ Petition (C) Nos. 11818 and 13627-28/2004
Decided On: 07.12.2007
Delhi High court
Judges: A. K. Sikri and Vipin Sanghi, JJ.
Facts: The respondent herein is an Orthopedically handicapped person having 55% disability. He was appointed as LDC in the Northern Railways. He got promotions from time to time and had risen to the rank of Office Superintendent Grade-I (OS-I). Next promotion was to the post of Chief Office Superintendent (COS). The respondent herein wanted that for appointment to the post of COS reservation for physically handicapped persons be also made in tune with such reservations having provided for SC/ST candidates.
The question that was raised for consideration was as to whether 3% reservation under Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 in the public employment provided in favor of the physically handicapped persons would be available to them even for promotions as well.
Held: Reservation is available not only at the induction level but for the promotions as well.
Ms. Anubha Bhargava Vs. Union of India (UOI) and Ors.
WP(C) No. 21966/2005
Decided On: 04.12.2007
Judges: A.K. Sikri and Vipin Sanghi, JJ.
The petitioner is claiming that the respondent is not following the 1% employment rule for visually disabled persons when selecting for a job.
Sambhavana Vs. Delhi University and Ors.
WP(C) No. 16258/2006
Decided On: 04.04.2007
Judges: T.S. Thakur and S.N. Aggarwal, JJ.
The petitioner is aggrieved that Delhi University has failed to follow the 3% vacancy rule for handicapped persons for employment in the university
Delhi Development Authority Vs. Omvati Kalshan
Decided On: 11.08.2006
Judges: Mukul Mudgal and S. Muralidhar, JJ.
The DDA is appealing a judgement in the case involving Writ Phttp://eyeway.org/informs/acts-and-policies/judicial-interpretations-and... (C) No. 879/2005, in which the respondent acquired eye problems while holding a job with the petitioner. However, she was denied certain promotions and fees, and thus she took the matter to court. The judge ruled in her favor.
Smt. Omvati Kalshan Vs. Delhi Development Authority
WP(C) No. 879/2005
Decided On: 19.10.2005
Judges: S. Ravindra Bhat, J.
When the petitioner was working for the respondent, she started suffering from deteriorating eyesight. The respondent then put the petitioner in a post that was lower in status and payscale than her last one. Her request for a promotion and protection of seniority was turned down, and thus the petitioner filed a petition in court.
All India Confederation of the Blind Vs. Govt. of NCT of Delhi and Ors.
WP(C) No. 18273/2004
Judge: S. Ravindra Bhat, J.
The petitioner is aggreieved because the Govt. of NCT of Delhi failed to follow the 3% employment rule for government positions for handicapped persons as stated in the disabilities Act of 1995.
LPA 2042, 2043 and 2044/2005
Decided On: 22.12.2005
Judges: Markandeya Katju, C.J. and Madan B. Lokur, J.
The NCT of Delhi is appealing the previous case on this page(WP(C) No. 18273/2004). It was one of the respondents in said previous case.
Ravi Kumar Arora Vs. Union of India(UOI) and Anr.
C.W.P. No. 6706 of 2002
Decided On: 15.04.2004
Sanjay Kishan Kaul, J.
The petitioner, who was applying for a government job, passed the written exam. He was however rejected because of his low vision.
Jai Narayan (Ex. Hav.) V. Union Of India & Others
(2003) VI Apex Decisions (Delhi) 561
Delhi High Court
Decided on: 17.09.2003
Judge: - B.A khan, B.N.Chaturvedi, JJ.
Fact: Jai Narayan, an Ex. Hav. was sanctioned disability pension on 1986 with 20 per cent disability. He was earning his pension without any interruption up to 1998. He was referred to the Re-Survey Medical Board to asses his disability on 1998. Re-Survey Medical Board again assessed his disability to the extent of 20 per cent. But PCDA(P), Allahabad assessed his disability to range from only 11 to 14 per cent. Based on the report from PCDA(P) Allahabad, his pension was blocked for a period up to 2002. Meanwhile, he was again examined by the Re-Survey Medical Board and his disability was found to be to the extent of 20 percent. Again he was granted disability pension from 2002 onwards. Aggrieved by the fact that his disability pension had disallowed from to 1998-2002, He filed a petition in the Delhi High Court.
Held: Unless the petitioner was subjected to a fresh Review Medical Board on the basis of a superior medical opinion, the PCDA (P) has no right to reduce the disability percentage that had already been determined by the Re-Survey Medical Board. The court directed that the petitioner’s case be reconsidered for the period 1998 to 2002. If it is found that no strong counter superior medical opinion is available during this period, to release the pension to the petitioner for the period 1998-2002 within three months of this order.
Full judgement unavailable
Delhi Administration Through Directorate Of Social Welfare, Delhi V. Presiding Officer & Others
(2003) VI Apex Decisions (Delhi) 528
Delhi High Court
Decided on: 11.09.2003
Judge: Mukul Mudgal
Fact: The petitioner ran a sheltered workshop employing the respondents 2 to 19, disabled persons. The workshop was run as a part of a scheme framed in 1976. The scheme provided for a training-cum-production centre for physically handicapped persons to train them to attain proficiency in the trade learnt in the training period. The sheltered workshop was to provide long term earning opportunities to the handicapped persons said to be less productive. The aims and objectives of the scheme were to provide work opportunities to physically handicapped workers and to enable them to attain higher level of productivity. One of the eligibility clauses for the beneficiaries of the said workshop was for such handicapped persons whose production level was 60 % less than that of the normal workers. This writ petition challenges the order under Section 33-C(2) of the Industrial Disputes Act proceeding to compute the Minimum Wages as per the Minimum Wages Act payable to respondents 2 to 19. The impugned order framed the following issues:
i) Whether the management is an industry within the meaning of Section 2(j) of Industrial Disputes Act?
ii) Whether the petitioner is a workman within the meaning of Section 2(s) of the Industrial Disputes Act?
iii) Whether there is relationship of employer and employee between the parties?
Held: There is no doubt that the activities of production of garments by the petitioner is an “industry” and while charity may be the motivating factor for the starting of the establishment. Therefore the pleas raised by the petitioner were rejected.
Raman Khanna (Dr.) V. University Of Delhi & Others; Miss. Rekha Tyagi V. The Vice Chancellor And Others
Parul Jhunjhunwala V. University Of Delhi
(2003) V Apex Decisions (Delhi) 343
Civil Writ No. 2670/2003
Delhi High Court
Decided on 11.08.2003
Judge: Vikramajit Sen, J.
Fact: The petitioners claimed that they were physically handicapped and therefore entitled to the advantages envisaged in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The primary assault is on the decision of the Delhi University to extend this statutory benefit only to the extend of one per cent to candidates suffering from locomotor disability. The sections concerned with this case were Section 33 and Section 39 of PWD Act.
Section 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.
Section 39: All educational institutions to reserve seats for persons with disabilities- All Government educational institutions and other educational institutions receiving aid from the Government, shall reserve not less than three per cent seats for persons with disabilities.
The question which has to be answered in these petitions is whether three per cent reservation contained in Section 39 should be distributed and exhausted among the third category, ie, locomotor disabled; or since Section 33 fragments this reservation into three categories each of which has an equal entitlement of one per cent, whether only one per cent reservation is to ensure to the third classification of persons afflicted by locomotor disability.
Held: It was ruled out a minimum of three per cent of the seats must be reserved for the physically handicapped to be distributed among any or all of the subcategories.
Delhi Transport Corporation V. Harpal Singh, Ex. Security Guard & Anr.
(2003) 105 Delhi Law Times 113
(2003) IV Apex Decisions (Delhi) 429
Delhi High Court
CWP No. 2735/2003
Decided on: 25/04/2003
Judge: Mukul Mudgal, J.
Fact: The petitioner was working as a security guard for Delhi Transport Corporation. Meanwhile he met with an accident, suffered disability and compelled to retired from service. The Labour Court by its impugned order reinstated the respondent noticing the provisions of section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
Section 47 of the Act read as:
“Non- discrimination in Government employees:- 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.
Delhi Transport Corporation (DTC) want to block the benefits given to the respondent on the basis that the workman was relieved from the service before the Act was enacted.
Held: The Act as a social welfare measure enacted with a view to benefit disabled persons. The plea of the DTC that the Act cannot be made retrospective could not be countenanced. The reference has been made after the Act came into force, the benefit of the Act is available to the respondent and giving the benefit under the Act to the respondent cannot in any event be termed a retrospective operation of the Act.
Life Insurance Corporation Of India V. Chief Commissioner For Disabilities And Others
Delhi High Court
CW No. 2789/2000
Decided on: 11-09-2002
Judge: Madan B. Lokur, J
Fact: This petition is filed by the Life Insurance Corporation (LIC) against the order passed by the Chief Commissioner of Disabilities under the Persons with Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act, 1995 to appoint Harish Chander Dabral for a peon post in the same Corporation. The respondent Harish Chander Dabral passed the written test and interview of the Corporation then he was put to a pre-recruitment medical examination by the doctors attached to the LIC. The medical report mentioned that the respondent suffering from Huntington Chorea. He is already suffering from 45 per cent of disability and is likely to be increase and so coming to the conclusion to be unfit for the post of a peon. The respondent lodged a complaint with the Chief Commissioner of disabilities under PWD Act (sec 59) for considering his employment. Director of VIMHANS has issued a medical certificate stating the type of disability the respondent facing is a non-progressive Dystonia affecting head and upper limbs and certified mentally normal and medically suitable for being employed as a Peon. Also he was examined by experts from the field of neuroscience, orthopedics and psychiatry of Govt. colleges. They also judged his cognitive functions as normal. So the Commissioner ordered LIC to take appropriate steps to appoint the respondent in peon post.
Held: There exists a doubt regarding respondent No.2 Harish Chander Dabral suffers from Chorea or Dystonia. But there does not appear to be any dispute whatever that Respondent is a "person with disability" as defined in Section 2(t) of the Act, that is a person suffering from not less than 40% of any disability. So he is entitled to the benefit of the provisions of the Act. The main duties of a peon indicate that none of the duties that he is required to perform is of a specialized nature or requires some skill or talent. LIC submitted that the mental faculty of Respondent would deteriorate with the passage of time, but what may happen in future cannot be a ground to deny employment today. "Disability is the loss or limitation of opportunities that prevents people who have impairments from taking part in the normal life of the community on an equal level with others due to physical and social barriers." .The Act, being a beneficial legislation, required some affirmative action to be taken on the part of LIC and other authorities. Considering all these LIC was adviced to issue a letter of appointment to the respondent to the post of a peon as directed by Chief Commissioner of Disabilities.
Social Jurist, A Lawyers Group V. Union Of India & Anr.
(2002) VI Apex Decisions (Delhi) 217
CWP No. 1283/2002
Date of Decision: 13.08.2002
High Court of Delhi
Judge: S.B. Sinha, CJ, A.K.Sikri, J
Fact: Section 2 (p) of the PWD Act defines ‘Medical Authority’ which is to be specified by a Notification to be issued by the appropriate Government for the purpose of this Act. It has to be any hospital or any institution. It is this ‘Medical Authority’ which is competent to issue certificates to persons with disability specifying the extend of disability being suffered by such persons. Unless such a medical authority is so specified which is competent to issue a certificate and unless such a certificate is provided to a disabled person he would not be in a position to claim various benefits provided under the Act. However, for last more than six years, this did not occur to the authorities that the basic requirement is to specify such medical authorities by means of a notification to enable the disabled persons to obtain certificates and then file avail the benefits of the same. This problem was brought to this court by means of present writ petition.
Held: The writ petition is disposed of with the direction to the respondents to issue a formal notification in conformity with the provisions of Section 2 (p) of the Act. The respondents are also directed to give wider publicity to the constitution of the aforesaid medical authorities by using electronic as well as print media so that as the disabled persons who need the required certificates know from where they can obtain such certificates after getting themselves examined. The factum of the aforesaid hospitals constituted as medical authorities within the meaning of Section 2(p) of the Act should also be displayed on the notice boards of the hospitals as well as prominent places in the hospital premises.
Delhi Transport Corporation V. Balram Sharma
(2003) 1 Apex Decisions (Delhi) 695
LPA 887/2002 & CMs 1890-91/2002
Judge: - Anil Dev Singh, R.S.Sodhi, JJ.
Fact: The respondent who was working as a conductor, suffered injury during the course of employment. As a result of the injury, he lost one eye. The Corporation prematurely retired the appellant from services on the ground of impairment of his eye. The respondent challenged the order of the Corporation as a violation of the Section 47 of the PWD Act. A single judge allowed the petition and aggrieved by the order the Corporation appealed a division bench. They argued that the disabled suffered by the petition did not fall with Section 2(i) of the Act.
Section 2(i) of the Act read as:
“2(i) “disability” means:
ii) low vision;
iv) hearing impairment;
v) locomotor disability;
vi) mental retardation;
vii) mental illness;
Also Section 2(u) of the Act read as:-
“2(u) “persons with low vision” means a person with impairment of visual functioning even after treatment or standard refractive correction but who uses or is potentially capable of using vision for the planning or execution of a task with appropriate assistive device.”
Held: A joint reading of Sections 2(i) and 2(u) of the Act leaves no manner of doubt that disability suffered by the respondent falls within the purview of Section 2(i) of the Act. The respondent as a result of the injury one of the eyes acquired low vision. Low vision is covered by the definition of disability as given in Section 2(i) of the Act. According to Section 2(u) of the Act, a person with low vision means a person with impairment of visual functioning even after treatment or standard refractive correction. Considering the position of the respondent, who suffered disability during his services, was totally covered by the provisions of Section 47 of the Act and his services could not be terminated prematurely.
Pushkar Singh & Others. V. University Of Delhi & Others
Decided on: 30.01.2001
(2001) 90 Delhi Law Times 36
Delhi High Court
Date of Decision: 30-01-2001
Judge: A.K.Sirgiri, J.
Fact: The executive Council of University of Delhi (Resolution No. 193(3) of 16/07/1994) recommended 3 per cent reservation to blind and orthopaedically handicapped categories to be made in every advertisement of University/colleges. Also recommended that atleast one disabled person must be appointed in each college during the academic year 1994-95. This decision of executive council was to enact the Parliament act of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The petitioners’ grievance was that none of the colleges of University of Delhi have complied with this resolution till date. They have not appointed even one disabled person during the academic year 1994-95 despite being several disabled candidates for numerous vacant posts advertised by colleges. The petitioners are all handicapped persons either visually or orthopaedically handicapped and are aspiring to get teaching posts in the University/Colleges and claimed to have qualified for the same in all aspects.
The colleges argued that no handicapped person was found fit enough to be appointed for the post. The handicapped persons only have the right to considered for the post but no right to be appointed to a post. As per section 32 of the Disabilities Act, it was the responsibility of Govt. of India to identify the posts in Group A, B, C and D to be reserved for persons with disabilities and so long as it was not done the respondents were helpless to offer employment.
Held: Government of India, Department of Personnel and Training had already issued “Brochure on Reservations and Concessions for Physically Handicapped in Central Government Services”. As for Group ‘A’ and ‘B’ posts, the Committee considered 15 suitable posts for handicapped persons, included teaching posts as well (Appendix-II). The respondents are directed to comply with the resolutions issued by the University in manner of reservations in teaching posts. If number of posts is not available, the respondents have either to create supernumerary post or terminate the services of those whose appointments made subject to the decision of this writ petition.
Shruti Kalra V. University Of Delhi & Others
(2001) 90 Delhi Law Times 262
Delhi High Court
Date of Decision: 30-01-2001
Fact: Shruti Kalra was born with congenital blindness but she managed to top all her studies upto Mphil.(instrumental music). She has been honoured by giving awards like L. Jugal Kishore Jagdish Prasad Memorial Prize, Junior Research Fellowship for Instrumental Music by University of Delhi. She has been appointed as a T.G.T (Instrumental Music) by Delhi Administration. After ten years she applied to one of the posts of a Lecturer (Instrumental Music) as advertised by Delhi University. She was interviewed but not selected by the Committee for any of the two posts. The respondent college filled only one post. The second post was again advertised by the college and this time she was given only the second rank from the merit list and the person in merit list one had been appointed on adhoc basis. She filed a petition (Constitution of India-Art.226) on the grounds that in the circular dated 25th October 1994 of the Delhi University providing for reservation stated that atleast one disabled person must be appointed in each college during the academic year 1994-95. In this case none has been appointed. The reasons laid down by the selection Committee was that they did not find her suitable for the post of Lecturer. Also, students in the concerned subject had been decreasing over the years and so one teacher is enough to carry out the work load of teaching.
Held: In the ‘Brochure on Reservations and Concessions for Physically Handicapped in Central Government Services’, it is mentioned that a number of jobs under Group ‘A’ and ‘B’ are identified as can be held by physically handicapped persons and preference must be given to them in recruitment. The teaching posts are the posts which are considered suitable for handicapped persons (Appendix-II). In this case selection committee did not adhere to reservation norms and treated her like any other general candidate. Going through her achievements it is not sensible how she becomes non suitable to the post of a Lecturer. The reasons for not filling the second post are also not convincing. Each section of the course would have definite number of classes per week , and with three year course, the number of classes to be taught gets multiplied by three. The work load of the course should be considered on this basis and not on the basis of number of students in the class. It is not understandable how one teacher can handle all the three year subjects of B.A degree course. But court cannot compel the authorities to fill up the second post since it is the prerogative of the employer to fill or not to fill the post. The court allowed following directions to the respondents:
To consider and decide whether to fill the second post of Lecturer in Instrumental Music.
If respondent decided to fill the second post of Lecturer, consider appointing petitioner to the post keeping in view of mandate of the Disability Act and Resolution (no.193/3 dated 16th July, 1994) provided that atleast one disabled person be appointed in each college during the academic year 1994-95.
In case the aforesaid is not feasible then earlier selection of candidates for the post stand quashed. Authorities are directed to fill the post keeping in view the reservation policy contained in circular and Disability Act.
Anshul Kapoor V. Union Of India And Another
(2001) 92 Delhi Law Times 902
Delhi High Court
Civil Writ No. 1548/2001
Fact: Anshul Kapoor, a visually handicapped, has made an application to the Staff Selection Commission’s Special Recruitment of Stenographer Grade-D and Lower Division Clerks for Visually Handicapped Persons. The exam was going to conduct both in Braille as well as bold print. Since it was impossible for the petitioner to read even the bold prints with his low vision, he approached the officials for providing the assistance of a scribe. But the officials denied to provide assistance of a scribe on the reason that there was no provision in the rules to provide a scribe to the petitioner for writing the examination. Being aggrieved by this beaurocratic decision he filed this petition for providing a scribe to write the examination.
Held: The petitioner owned certificates from All India Institute of Medical Sciences mentioning 75 per cent visually handicap. The doctors suggested that he was not in a position to write even with the help of magnifying glass and so he needs aid. During his school days the Central Board of Secondary Education and Examination had provided a writer and half an hour extra time to attend the examination. University of Delhi also had done the same to him for attending examination. Based on these reasons the Court directed the respondents to provide a scribe for his assistance to write the examination. If no scribe is provided the petitioner has the write to take a scribe along with him on the condition that the scribe should not be academically more qualified than the petitioner.
Union Of India V. Hari Ram Shukla & Others
(2002) VI Apex Decisions (Delhi) 679
CWP No. 1054/2001
Judge: A.K.Sikri, J.
Fact: The respondents Hari Ram Shukla and others were visually handicapped persons working as cane weavers in Engineer-in-Chief’s Branch (EIC), Kashmir Branch, New Delhi for more than two decades. Upon the recommendations of 4th Pay Commission they had been placed in the pay scale of Rs.900-1150/- but were not considered for up gradation in the skilled Grade having pay scale of Rs. 950-1500/-. So they requested the Central Administrative Tribunal to look into the issue. The learned Tribunal found it was illogical that the category of caneman cannot be placed into skilled category just because they are overqualified. Though they are eligible for promotion to the grade of upholsterer, passing of a trade test was mandatory for such promotion but the authority had never permitted blind caneman to undertake such tests. Based on these assessments Central Administrative Tribunal directed EIC to provide opportunities to Caneman. Being aggrieved by this order, EIC filed a written petition in High Court of Delhi to look into the issue of giving up gradation to these visually handicapped caneman.
Held: The court took decision in favour with the decision taken by the Central Administrative tribunal. Besides being visually handicapped, the respondents acquired professional qualification as caneman and proficiency in their trade. Instead of encouraging them, petitioners had taken an insensitive attitude towards them. Relying more on hyper technical grounds they denied even a single promotion in their career. The court directed the petitioners to ensure equality and legitimate due to these visually handicapped employees without further delay.
Parminder Pal Singh V. Union Of India & Another
Decided on: 19.10.2000
(2000) 88 Delhi Law Times 808
Delhi High Court
Civil Writ Petition No.5915 & C.A. Misc. No. 9093/2000
Fact: Staff Selection Commission had advertised in the employment news for recruitment of stenographers Grade ’D’ and Lower Division Clerks for visually handicapped persons. The question papers will be provided only in Braille with a view to prevent malpractices. The candidates who are visually handicapped but not totally blind eligible to appear are deprived of taking examinations as they do not know Braille. There was a conscious decision to hold the test in Braille, with a view to prevent malpractices and that this is based on the experience gained by the Commission in holding the last examination where question papers were given in Braille as well as bold print. The respondents claim that they have reasons to believe that those with a better vision than the standard prescribed for visually handicapped persons, procure and obtain requisite medical certificate through deceit and other questionable means.
Held: Persons with impaired vision but being in a position to read with the aid of lenses or bold print should not be treated as totally blind and compelled to take the examination in Braille. There can be no dispute with the proposition that persons who are disabled or are visually handicapped should be encouraged to lead normal activity and join the main stream, without being made conscious of or reminded of their disability or handicap. It would not augur well for the mental well being of a person who has not lost his sight totally to be compelled to learn Braille. Merely because the respondents suspect that certain persons obtain dubious and false certificates of being visually handicapped and may take advantage by taking the examination if the question paper is in bold print, is not sufficient reason to deprive those visually handicapped persons not knowing Braille from taking examination and, thus, depriving them of an opportunity to compete in an examination, where reservation has been made for them. It is for the respondents to devise ways and means to obviate or eliminate mal practices or to have further safeguards in that regard, by prescribing the authorities, in whom they have confidence, as being ones who should certify the candidate being visually handicapped. Even at a post-qualifying stage, if there are any doubts about certain candidates being visually handicapped or not, who have been successful on the basis of false medical certificates, the same can be eliminated as a result of subsequent medical examination by which the genuine vision and sight of the candidate can be ascertained by scientific means and equipment.
In the light of aforesaid facts, respondents are directed to reconsider their decision and examine the feasibility of holding a separate examination in respect of these vacancies, for those who are visually handicapped but do not posses the knowledge of Braille, by providing them an opportunity of taking the examination with the question paper in bold print. The holding of such an examination would also provide an opportunity to all those visually handicapped person who may not have applied in response to the advertisement in question by the Staff Selection Commission since it required taking up the examination in Braille only.
Kumari Rekha Tyagi V. Vice Chancellor, University Of Delhi & Others
2001 (93) DLT 813
Civil Writ Petition No.6496/2000
Delhi High Court
Judge: Arijit Pasayat C.J., S.K.Mahajan, J.
Fact: The basic question involved in this case is whether Section 39 of Persons with Disabilities Act deals with reservation of seats in educational institutions or is related to service. Section 39 of the Act notifies all government educational institutions and other educational institutions receiving aid from the government is to reserve not less than 3 per cent of its seats for persons with disabilities. In Naveen Kumar A. v. University of Delhi, CWP 4657/2000, it was held by the learned single judge, it was obvious from the section 39 that education institution in question is required to reserve not less than three per cent of seats for physically handicapped persons. A doubt was expressed about the correctness of this judgement.
Held: The inevitable conclusion is that Section 39 has no application for reservation of seats in educational institutions. For that purpose the word “posts” has to be profitably used in place of “seats”. It falls in line with the legislative intent as imply reflected in section 32 and section 33. In other words, in Government educational institutions or aided institutions three percent of posts can be reserved for persons with disabilities. The procedural aspects of employment as applicable to other provisions in Chapter VI have perforce application to Section 39 of PWD Act.
Virender Kumar Gupta V. Delhi Transport Corporation
(2002) IV Apex Decisions (Delhi) 876
C.W.No. 2949/1998 and C.M.No.6731/1998
Judge: Dr. Mukundakam Sharma, J.
Fact: Virender Kumar Gupta, conductor of Delhi Transport Corporation (DTC), met with an accident during his service period. DTC allowed a medical leave with out pay for the petitioner. In course of time he recovered from his illness and got fitness certificate for light/desk job from the All India Institute of Medical Sciences, New Delhi. Later he requested the DTC authorities to take back him on duty and assign him appropriate deskwork. But the depot manager directed him to the Medical Board of the Corporation for examining his fitness. Medical Board of Delhi Transport Corporation declared him medically unfit to perform the present duty. He was compelled to retire prematurely from the conductor post. Thereby he filed the present petition under sec 47 of Person’s with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 for quashing the DTC order and taking back in service with continuity and consequential benefits.
The respondents counter argued that there are no provisions for absorbing operational staff in the light/desk job. Also as per D.R.T.A (conditions of Appointment & Services) Regulations, 1952, Medical Officer of Delhi Transport Medical Board is the competent authority to recommend the employ fit for duty or rest and this authority had declared the petitioner as medically unfit to perform his duty. Section 59 of the PWD act recommends an alternative remedy as directed by the Chief Commissioner. Here the alternative remedy recommended was to premature retirement of the disabled employee.
Held: The doctor in the DTC could not have given an opinion superseding the opinion of a reputed institute as All Institute of Medical Sciences. Also the doctor in DTC not disputed the fact that the petitioner is capable of doing desk job. So petitioner is capable of doing desk job provided to him. Sec 47 of PWD Act clearly declared that service of a person should not be dispensed upon acquiring disability during his service. The power vested with the Chief Commissioner (according to sec 59 of PWD Act) is not absolute bar to termination of service or reduction in rank of an employee due to disability and to act in contravention of the mandatory provisions of Act of 1995. With aforesaid reasons the court directed the respondents to take back the petitioner in service and pay the salary from the date the respondent stopped paying full salary and treat the petitioner as continuous employment without break in service.
Union Of India & Ors. V. K.P.Singh
(2002) VIII Apex Decisions (Delhi) 515
C.W.P No. 7450/2000
Judge: - S.B.Sinha, CJ
Fact: This petition was made against the order passed by the principle bench of Central Administrative Tribunal to appoint the respondent as regular junior engineer (civil) considering his ‘handicapped’ status. He had submitted the certificate of ‘orthopaedically handicapped’ from Bara Hindu Rao Hospital, Delhi and qualified All India Competitive Exam for Junior Engineers in 1997. The order of appointment made was in physically handicapped quota. The petitioners grievance was that he is not eligible for appointment for the post on physically handicapped quota on the basis that he posses handicappedness upto the extent of 9 per cent only.
Held: As per the provisions of the Person’s with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, the minimum degree of disability in order for a person to be eligible for any concession/benefits would be 40 per cent disability (sec 33, Para 6). Since, respondent has not fulfilled the criteria for claim for reservation, he cannot be considered for recruitment in the reserved category.
Narender Singh V. Delhi Transport Corporation
(1996) III Apex Decisions (Delhi) 60
Judge: Devinder Gupta
Fact: Narendra Singh and others were working as drivers in Delhi Transport Corporation. They were medically examined and failed in vision test, so DTC offered them job in the lower grade. Being aggrieved by this decision the petitioners approached the High Court to consider the issue regarding lowering their Grade in service. High Court came to the conclusion that since petitioners found medically unfit to work as drivers, DTC should offer them post of Peon with basic pay scale of Rs.775/- which is lower than their present Grade. However, petitioners have the liberty to raise the question regarding wages before the labour court. After accepting the terms and conditions of the DTC on the basis of court’s direction, the petitioners again approached the court by filing separate petitions. Their grievance was that there are three other employees who were also found medically unfit, but absorbed as peon by DTC in a basic pay scale of Rs.1025/- that is higher than their pay scale. They questioned discrimination in services according to article 14, 16 (Constitution of India)
Held: The case of other three employees the petitioners mention were not similar to this. The other three employees found to be colour blind, but they did not approached the court. DTC absorbed them in a lower Grade as peon in the given pay scale of Rs. 1025/-. On the basis of their service records, it was decided by the Corporation to absorb them in the given pay scale. But in this case the court directed the respondents to absorb the petitioners in a lower grade of peon in class IV. The petitioners were absorbed on a basic pay scale of Rs. 775/-. The petitioners were also agreed to this decision. Based on these circumstances, court did not found any discrimination in service and so dismissed the petition.
Full judgement not available
Rajbir Singh V. Delhi Transport Corporation & Others
(2002) VIII Apex Decisions (Delhi) 432
Civil Writ Petition No. 5700/2000
Judge: Sanjay Kishan Kaul, J.
Fact: The petitioner was working as a driver with Delhi Transport Corporation. While off duty, the petitioner met with an accident. The Medical Board declared him medically unfit and was retired prematurely. The petitioner challenged his retirement as a violation of Section 47 of the PWD Act.
Held: A liberal approach was followed while adopting the Section 47 of the PWD Act. Therefore it makes no difference whether the accident has been suffered by the petitioner at home or at work. Delhi Transport Corporation was directed to take back the petitioner with back wages and his employment has to be treated as continuous.
Baljeet Singh V. Delhi Transport Corporation
(2000) 83 Delhi law times 286
Delhi High Court
Civil Writ Petition No.4278, 4304,4166,3015 & 3032/1999
Judge: A.K.Sikri, J.
Fact: The petitioners were working as employees in the Delhi Transport Corporation. They were not disabled at the time of their entrance into service. But unfortunately, they all suffered some sort of disability during service period. Due to such disablement they were knocked down with the orders of premature retirement rendering them unemployed. They filed petition in the High Court of Delhi under the provisions of Person’s with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. DTC claimed that Chief Commissioner has the power to provide alternative remedy to an employee suffering from disability according to the mandatory provisions of PWD Act (sec 59).
Held: No establishment shall reduce the rank of an employee who acquires disability during service. If he is not suitable for the post due to his disability, he shall be shifted to some other posts with same pay scale and service benefits. Even if he cannot be adjusted to some other posts he shall be kept on supernumerary post until a suitable post available (sec 47 of PWD Act). There is no power with the Chief Commissioner to hold order of termination of service of an employee or reducing the rank or to compel an establishment to take back the employee whose services have been terminated illegally and in contravention of the mandatory provisions of section 47 of the Act of 1995. So the court directed the respondents to take back the petitioners into service and pay the due salary. The petitioners should be treated as in continuous employment without break in service.