There has been some controversy over the interpretation of Section 39 of the PWD Act, which reads:
"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.”
It has been held that Section 39 applies only to government institutions. (Harsha Shivaram v. National Law School of India, Bangalore, (1999) 4 Karnataka Law Journal 626).
However a controversy stemmed around whether the scope of Section 39 extends to education or employment. In the judgement of State of Kerala v. Mary Joseph ((2001) 3 Kerala Law Times 26) it has been held that Section 39 does not oblige all government and aided educational institutions to reserve not less than 3 per cent seats in professional degree courses in Engineering, Medical and Agricultural courses for persons with disabilities.
Since Section 39 comes with chapter VI with the heading Employment, Section 39 obliges to reserve 3 per cent vacancies or posts in all government or other educational institutions which receive aid from government. Similar views have been taken by the Delhi High court in Kumari Rekha Tyagi v. Vice Chancellor, University of Delhi. However, Dr. P.D.Benny v. State of Kerala & Ors. has proceeded on the footing that Section 39 apply to education. In that case it was held that one seat out of twenty six cannot be reserved for disabled students. If one out of twenty six seats is reserved for the physically handicapped it will be more than the mandatory of 3 per cent reservation and is not in strict conformity with the Act.
"This dichotomy was removed by the Supreme Court in two decisions: firstly on 11.9.2003 in Civil appeal No 6120/2001 titled as All India Parents Association Hearing Impaired vs. State of Kerala and thereafter on 18.9.2002 in Civil appeal No 4604 of 20000 titled as Deputy Secretary, Department of Health v Soachita Biswas”. (quoted from Dr Raman Khanna vs. University of Delhi.)
The National Human Rights Commission stepped in to intervene to allow a candidate Mr. Anka Toppo to appear for his final MBBS exam under a modified methodology exam and directed All Institute of Medical Sciences and Medical Council of India to work out a methodology which could be adopted in all similar cases for persons with disability.
Article 317 (3) of the Constitution provides for the removal of a member of the Public Service Commission on the ground that he is unfit to continue in the office by reason of infirmity of mind or body. Infirmity of mind or body mentioned in Article 317 of the Constitution means an infirmity, which disables a member from discharging his functions effectively. It doesn’t mean infirmity of body or every loss of use of any limb. Jai Shankar Prasad v. State of Bihar, (1993) 2 Supreme Court Cases 597
The UPSC was directed to permit visually handicapped persons to write the examination in Braille script or with the help of a scribe. But if a hierarchy of promotion posts is found by the government that a particular post is not suited for visually handicapped persons, he shall not have the any right to claim for such a particular post. National Federation of Blind v. UPSC & Others, (1993) 2 Supreme Court Cases 411
The Chief Commissioner of Disabilities is the competent authority to decide the issue of identifying the post that can be reserved for physically handicapped persons under 62/63 of PWD Act. Rajesh Kumar v. Hindustan Aeronautics Ltd., (2002) Allahabad Law Journal 693
Section 32 of the PWD Act -- unless and until the post is identified by the government as per Section 32, claim for appointment cannot be raised by person with 40 per cent disability. Ray John Varghese v. State of Kerala, (2001) 3 Kerala Law Times 782
3 percent of posts of govt. and local authorities are to be reserved for physically handicapped persons according to Section 33 of the PWD Act. Jaswant Singh v. State of Haryana & Another, (2002-03) CXXXII The Punjab Law Reporter 29
A person who becomes disabled during his tenure of service with the government is entitled to alternative employment under Section 47 even though the accident causing the disability was not during the employment hours. S.K Moulana v. Depot Manager, Andhra Pradesh State Road Transport Corporation, (2004) 1 Andhra Pradesh Law Times 520, Andhra Pradesh State Road Transport Corporation & Others v. M.V.Ramana Rao, (2003) 5 Andhra Pradesh Law Times 520
A person who became disabled during his tenure of employment cannot be terminated as medically unfit. He has to be given alternative employment at same pay. Md. Sukur Miya & Another v. Singareni Collieries Company Limited and Others, (2003) 3 Andhra Law Times 765
He should be kept at a supplementary post until another post is available. Syed Sha Musebulla Alvi v. Secretary, G.A.D, Secretariat, Hyderabad, (1999) 2 Andhra Law Times 130
Even if he is permanently incapacitated the government is bound by Section 47 of the PWD Act to give him alternative employment and cannot be terminated from service. Kunal Singh v. Union of India and Another, (2003) 4 Supreme Court Cases 524
If no job is available then workman should be given additional compensation along with retirement benefits. Jaswant Singh and Another v. State of Punjab, (1996) 10 Supreme Court Cases 570, Anand Bihari and Others v. Rajasthan State Road Transport Corporation, (1991) 1 Supreme Court Cases 731.
Air travel concession available to the blind should also be accorded to orthopaedically disabled persons. (Javed Abidi v. Union of India, (1999) Supreme Court Cases 467).
Handicapped persons can be treated on an out-of-turn basis for allotment of flats of any category. (Godawari Bai v. Others, (1990) Supp Supreme Court Cases 124). Scheme have to be framed regarding concession rates in leasing out of land in favour of persons with disabilities keeping in tune with Section 43 . (National Federation for Blinds v. State of U.P and Others, (2000) 87 All India Reporter 258).