Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal: The Division Bench of Justice Virender Singh (Chairperson) and Air Marshal BBP Sinha, Member (A) rejected the instant application for the grant of disability pension and rounding off benefits.

The applicant was enrolled in the Grenadiers Regiment on 19-07-2000 and was invalided out of service on 10-02-2001 in low medical category “EEE” during the basic military training itself. The disability of the applicant was assessed at 20% for two years, opining it as neither attributable to nor aggravated by Military service (NANA). The claim of the applicant for disability pension was rejected by the authorities, the applicant instead filing an appeal against the aforesaid decision preferred a writ petition before the High Court of M.P.

The High Court, while relying on the decision of Supreme Court in Union of India v. No. 2695668 Ex Rect Chhittarmal Gurjar, dated 11-07-2002 in LPA No.111 of 2002, directed the respondents to conduct fresh medical examination of the applicant by Army Doctors other than those who had done earlier medical examination. In the subsequent medical examination the applicant was again found medically unfit for further service. Thus, the claim of applicant for disability pension being rejected once again, the applicant reached this Tribunal with original application, which was disposed of vide order dated 01-09-2017 directing the respondent to consider the case of the applicant in the light of the judgment in Chhittarmal’s case. However, once again the claim of applicant was rejected by the respondent vide letter dated 19-04-2018

Counsel for the applicant, Adv. Pankaj Kumar Shukla argued that the applicant was enrolled in Army in a medically fit condition and thereafter he had been invalided out in Low Medical Category, therefore, his disability should be considered as attributable to and aggravated by military service and he should be granted disability pension.

The Tribunal observed that the (Invalidment Medical Board) IMB had clearly opined that the disease existed prior to enrolment of the applicant in the Army service. The disease of the applicant was related to chronic inflammation of the middle ear leading to hearing loss. Hence, it was held that by no stretch of imagination it could be said that the disease which surfaced within four months of enrolment was attributable to or aggravated by stress and strain of Army service. The application was dismissed.[Shailendrabeer Singh v. Union of India, 2019 SCC OnLine AFT 10386, decided on 30-09-2019]


Kamini Sharma, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In  a case where a citizen, who suffers from a writer’s cramp, was denied a scribe in the civil services’ examination, the 3-judge bench of Dr. DY Chandrachud*, Indira Banerjee and Sanjiv Khanna, JJ has held that writer’s cramp Forms part of Entry IV of the Schedule to the Rights of Persons with Disabilities Act, 2016 (RPwD Act 2016) and

“To deny the facility of a scribe in a situation such as the present would negate the valuable rights and entitlements which are recognised by the RPwD Act 2016.”


Background


The appellant, after obtaining an MBBS degree from the Jawaharlal Nehru Institute of Post Graduate Medical Instruction and Research, intended to pursue a career in the civil services. A scribe was provided to him by the Union Public Services Commission to enable him to appear in the written test for CSE in 2017. In the online application form for CSE 2017, the appellant declared himself to be a person with locomotor disability to avail the services of a scribe.

In his online application for the CSE 2018, the appellant declared himself to be a person with a benchmark disability of 40% or more. By his email dated 28 February 2018, the appellant requested the UPSC to provide him with a scribe for the examination. UPSC, by its letter dated 15 March 2018, rejected the request on the ground that a scribe could be provided only to blind candidates and candidates with locomotor disability or cerebral palsy with an impairment of at least 40% and the appellant did not meet this criterion.

He also sought to appear for selection to the post of Medical Officer pursuant to the Combined Medical Services Examination 2017 conducted under the auspices of UPSC. By a communication dated 12 February 2018, the disability certificate was denied to him by Medical Board of Ram Manohar Lohia Hospital, Delhi.


Tribunal’s decision


By a judgment dated 7 August 2018, the Tribunal dismissed the application filed by the appellant on the ground that, since Ram Manohar Lohia Hospital had refused to issue a disability certificate, the appellant could not claim access to a scribe as a disabled candidate. The Tribunal also noted that the appellant did not claim the facility of a scribe in the CSE 2017 or during his MBBS graduation examinations. The Tribunal held that though in para 5 of the CSE Notification 2018, the UPSC recognized the right to a scribe, it has been limited to blind candidates and candidates having locomotor disability and cerebral palsy, where a minimum 40% impairment exists. The appellant was held not to fulfill the criteria.


Delhi High Court’s decision


A Division Bench of the High Court of Delhi by an order dated 25 September 2018 declined to interfere with the order of the Tribunal on the ground that the appellant had not qualified at the Preliminary Examination for CSE 2018 and thus, the relief seeking an amendment of the CSE Rules 2018 to provide scribes to candidates with specific disabilities was rendered otiose. The appellant was granted liberty to file another application before the Tribunal in the future. This order of the High Court of Delhi has been challenged in appeal.


Supreme Court’s decision


Scheme of RPwD Act 2016

“Part III of our Constitution does not explicitly include persons with disabilities within its protective fold. However, much like their able-bodied counterparts, the golden triangle of Articles 14, 19 and 21 applies with full force and vigour to the disabled. The RPwD Act 2016 seeks to operationalize and give concrete shape to the promise of full and equal citizenship held out by the Constitution to the disabled and to execute its ethos of inclusion and acceptance.”

Section 3 casts an affirmative obligation on the government to ensure that persons with disabilities enjoy (i) the right to equality; (ii) a life with dignity; and (iii) respect for their integrity equally with others. By recognizing a statutory right and entitlement on the part of persons who are disabled, Section 3 seeks to implement and facilitate the fulfillment of the constitutional rights of persons with disabilities.

“There is a critical qualitative difference between the barriers faced by persons with disabilities and other marginalized groups. In order to enable persons with disabilities to lead a life of equal dignity and worth, it is not enough to mandate that discrimination against them is impermissible. That is necessary, but not sufficient. We must equally ensure, as a society, that we provide them the additional support and facilities that are necessary for them to offset the impact of their disability.”

According to the scheme of the RPwD Act, 2016 that “person with disability” and “person with benchmark disability” are treated as separate categories of individuals having different rights and protections. A third category of individuals “persons with disability having high support needs” has also been defined under the RPwD Act 2016.

The RPwD Act 2016 is fundamentally premised on the recognition that there are many ways to be, none more ‘normal’ or ‘better’ than the other. It seeks to provide the disabled a sense of comfort and empowerment in their difference.

Recognizing the state of affairs created by centuries of sequestering and discrimination that this discrete and insular minority has faced for no fault on its part, the RPwD Act 2016 aims to provide them an even platform to thrive, to flourish and offer their unique contribution to the world.

“It gives a powerful voice to the disabled people who, by dint of the way their impairment interacts with society, hitherto felt muted and silenced. The Act tells them that they belong, that they matter, that they are assets, not liabilities and that they make us stronger, not weaker.”

When the government in recognition of its affirmative duties and obligations under the RPwD Act 2016 makes provisions for facilitating a scribe during the course of the Civil Services Examination, it cannot be construed to confer a largesse. Nor does it by allowing a scribe confer a privilege on a candidate. The provision for the facility of a scribe is in pursuance of the statutory mandate to ensure that persons with disabilities are able to live a life of equality and dignity based on respect in society for their bodily and mental integrity.

“To confine the facility of a scribe only to those who have benchmark disabilities would be to deprive a class of persons of their statutorily recognized entitlements. To do so would be contrary to the plain terms as well as the object of the statute.”

Reasonable accommodation

“The cornerstone of the reasonable accommodation principle is making adjustments that enable a disabled person to effectively counter the barriers posed by their disability.”

At the heart of this case lies the principle of reasonable accommodation. Individual dignity undergirds the RPwD Act, 2016 . Intrinsic to its realization is recognizing the worth of every person as an equal member of society.

The principle of reasonable accommodation acknowledges that if disability as a social construct has to be remedied, conditions have to be affirmatively created for facilitating the development of the disabled. In the specific context of disability, the principle of reasonable accommodation postulates that the conditions which exclude the disabled from full and effective participation as equal members of society have to give way to an accommodative society which accepts difference, respects their needs and facilitates the creation of an environment in which the societal barriers to disability are progressively answered.

Failure to meet the individual needs of every disabled person will breach the norm of reasonable accommodation. Flexibility in answering individual needs and requirements is essential to reasonable accommodation. The principle contains an aspiration to meet the needs of the class of persons facing a particular disability. Going beyond the needs of the class, the specific requirement of individuals who belong to the class must also be accommodated.

The principle of reasonable accommodation must also account for the fact that disability based discrimination is intersectional in nature. The intersectional features arise in particular contexts due to the presence of multiple disabilities and multiple consequences arising from disability.

Disability therefore cannot be truly understood by regarding it as unidimensional. Reasonable accommodation requires the policy makers to comprehend disability in all its dimensions and to design measures which are proportionate to needs, inclusive in their reach and respecting of differences and aspirations.

“Reasonable accommodation cannot be construed in a way that denies to each disabled person the customization she seeks. Even if she is in a class of her own, her needs must be met.”

Possibility of misuse

“To think that persons with disabilities who do not have a benchmark disability but nonetheless request access to a scribe, as a class, have the objective of gaming the system is to misunderstand their aspiration, to stamp them with a badge of cheaters and to deprive them of their lawful entitlements.”

Additional Solicitor General Madhavi Divan emphasised on the competitive nature of the CSE and of the need to preserve the purity of the examination. The Court, however, found it difficult to accept the argument and said that there can be no doubt about the fact that the CSE is competitive in itself but the apprehension that the facility of a scribe should not be misused can furnish no valid ground to deprive the whole class of citizens – persons with disability who need a scribe – from the statutory entitlements which emanate from the provisions of the enactment, on the supposition that someone may misuse the provisions of the law.

“Undue suspicion about the disabled engaging in wrongdoing is unwarranted. Such a view presumes persons with disabilities, as a class, as incompetent and incapable of success absent access to untoward assistance. The disabled confront stereotypes in several aspects of their day to day lives. One of them is that they do not perform as well as others. Like other stereotypes, this one is also totally flawed and contrary to reality. Such an ableist premise is inconsistent with the approach to disability enshrined in the UNCRPD and the RPwD Act 2016.”

When an able-bodied student engages in cheating, the normal consequence is their disqualification or other suitable punitive action. The same consequence can flow from a candidate using their disability to game the system.

“The system may be vulnerable to being gamed by able-bodied persons, however, it is the persons with disabilities who are being asked to bear the cost of maintaining the purity of the competitive examinations by giving up their legal entitlements on the presumption that there is a possibility of misuse.”

Realizing the transformative potential of the Rights of Persons with Disabilities Act 2016

The nodal Ministry, in coordination with other relevant actors, must make a concerted effort to ensure that the fruits of the Act actually reach the intended beneficiaries. In this regard,

  • Article 8(2) of the UNCRPD outlines the awareness-raising measures that must be undertaken. These must be conducted to recognize and advance knowledge of the skills and abilities of persons with disabilities and of their contributions to the workforce and foster respect for the decisions of persons with disabilities in their family life.
  • Sensitization programmes must be held at educational institutions and in professional spheres on the condition of disability and the rights of disabled persons and the like.
  • The government must give effect to these provisions regularly to sensitize our society to the everyday challenges that may be imposed by the actions or inactions of the able-bodied on their disabled counterparts.

Formulation of new policy concerning access to scribes for persons with disabilities

  • Union Government in the Ministry of Social Justice and Empowerment to ensure the framing of proper guidelines which would regulate and facilitate the grant of a facility of a scribe to persons with disability within the meaning of Section 2(s) where the nature of the disability operates to impose a barrier to the candidate writing an examination.
  • In formulating the procedures, the Ministry of Social Justice and Empowerment may lay down appropriate norms to ensure that the condition of the candidate is duly certified by such competent medical authority as may be prescribed so as to ensure that only genuine candidates in need of the facility are able to avail of it. This exercise shall be completed within a period of three months.
  • While framing the guidelines, the Union Government should be mindful that the duty to provide reasonable accommodation is an individualized duty as has also been noted by the CRPD Committee in General Comment. In other words, a case-by-case approach must be adopted by the relevant body charged with the obligation of providing reasonable accommodation.
  • While considering the financial cost and resources available for the provision of accommodation, the overall assets rather than just the resources of the concerned unit or department within an organization must be taken into account. It should also be ensured that persons with disability are not required to bear the costs of the accommodation.
  • Consultation with persons with disabilities and their involvement in decision making about matters affecting their lives is necessary to bring about any meaningful change in the realization of their rights.

[Vikash Kumar v. Union Public Service Commission, 2021 SCC OnLine SC 84, decided on 11.02.2021]


*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Redressal Commission (NCDRC): Dr S.M. Kantikar (Presiding Member) addressed a matter wherein medical negligence was been alleged.

OP — Dr. Vinod Bele has been alleged to caused medical negligence resulting to radial nerve injury due to negligent administration of injection in the arm of the patient.

Previously, district forum had held OP liable for negligence after which OP appealed in the State Commission wherein it was allowed and order of District Forum was set aside.

The instant revision petition was filed under Section 21(b) of the Consumer Act, 1986 by the aggrieved complainant.

OP had denied any negligence in the treatment of the patient.

Complainant was suffering from arthiritis since 2-3 months she was under treatment of OP till September 2001. Nothing on record was found which proved that OP administered injection. Also it has been addd that OP referred the complainant to Kasturba Hospital where sh was treated for arthiritis on OPD basis.

It is further to note that, the patient did not approach OP immediately for the alleged suffering of “Radial Nerve Palsy” after taking the alleged injection on 8th January, 2001.

Bench also noted that for 4 months she was taking treatment and in result there was positive evidence of recovery but thereafter she did not come in the hospital for follow up examination and thus she suffered disability.

Complainant failed to produce any cogent evidence or any expert opinion that the OP treated the patient negligently and caused post injection radial nerve palsy.

Thus, in tribunal’s opinion, OP acted with reasonable care. Disability was due to the long standing arthiritis but not due to nerve palsy as alleged.

“No cure is not negligence” — despite reasonable treatment if there is no improvement.

Hence in view of the above, revision petition was dismissed. [Sunandabai Kisanji Dhole v. Dr Vinod Bele, 2020 SCC OnLine NCDRC 126 , decided on 22-06-2020]

Case BriefsSupreme Court

Supreme Court: In a case involving an accident that left a bright young girl with 100% disability i.e. a very low I.Q. and severe weakness in all her four limbs, severe hysteria and severe urinary incontinence, the bench of L. Nageswara Rao and Deepak Gupta, JJ awarded a compensation of around Rs. 63, 00, 000 but showed dismay over the life that lies ahead for the girl and said,

“How does one assess compensation in such a case? No amount of money can compensate this child for the injuries suffered by her. She can never be put back in the same position.”

The girl was travelling on a tractor with her parents and the tractor was hit by a truck which was driven rashly. As per the assessment, the accident has left her with an I.Q. less than 20% of a child of her age and her social age is only of a 9-month-old child. This means that she, while lying on the bed will grow up to be an adult with all the physical and biological attributes which a woman would get on attaining adulthood, including menstruation etc., but her mind will remain of a 9-month-old child. Basically, she will not understand what is happening all around her.

The Court said that the amount awarded by it was more than the amount claimed, however, in motor accident claim petitions, the Court must award just compensation and, in case, the just compensation is more than the amount claimed, that must be awarded especially where the claimant is a minor.

“We must remember that this little girl is severely suffering from incontinence meaning that she does not have control over her bodily functions like passing urine and faeces. As she grows older, she will not be able to handle her periods. She requires an attendant virtually 24 hours a day. She requires an attendant who though may not be medically trained but must be capable of handling a child who is bed ridden. She would require an attendant who would ensure that she does not suffer from bed sores.”

Another factor that the Court took note of was that while assessing the compensation in a case like the present one is that the claim can be awarded only once. The claimant cannot come back to court for enhancement of award at a later stage praying that something extra has been spent. Therefore, the courts or the tribunals assessing the compensation in a case of 100% disability, especially where there is mental disability also, should take a liberal view of the matter when awarding compensation.

The Court noticed,

“This girl will miss out playing with her friends. She cannot communicate; she cannot enjoy the pleasures of life; she cannot even be amused by watching cartoons or films; she will miss out the fun of childhood, the excitement of youth; the pleasures of a marital life; she cannot have children who she can love let alone grandchildren. She will have no pleasure. Her’s is a vegetable existence.”

The Court, hence, directed that

  • the insurance company shall deposit the enhanced amount before the MACT in terms of the judgment after deducting the amount already paid by the insurance company within a period of 3 months.
  • The MACT shall keep the entire amount in a fixed deposit in a nationalised bank, for a period of 5 years, giving highest rate of interest. The interest payable on this amount shall be released on quarterly basis to the father of the child.This amount shall be spent for paying the attendants and for the care of the child alone.
  • Even after 5 years since this child for all intents and purpose shall remain a person under a disability, the MACT shall keep renewing the amount on these terms.
  • In case the parents or the guardian moves an application for release of some amount to meet some special medical expenses, then MACT may consider release of the same.

[Kajal v. Jagdish Chand, 2020 SCC OnLine SC 127, decided on 05.02.2020]

Case BriefsHigh Courts

Jharkhand High Court: Dr S.N. Pathak, J., dismissed a writ petition as he was of the view that the transfer of the petitioner was proper and no interference was necessary.

In the pertinent case, the petitioner moved to this Court challenging the order of transfer dated 24.05.2019, whereby he has been transferred from SBI, Singh More Branch, Ranchi to SBI, Tupudana, Branch as per extant instruction of 5 years transfer policy. It is a specific case of the petitioner that he is a disabled person.

Pawan Kumar Pathak, counsel for the petitioner, had submitted that a petitioner is a differently-abled person and as per the Circular F.No. 302/33/2/87 SCT (B) dated 05.03.1988, the physically handicapped employees of Bank in all cadres should normally be exempted from routine periodical transfer and as such, the petitioner has been transferred in complete violation of the statutory provisions. Rajesh Kumar, counsel of the opposite party submitted that the petitioner has been transferred as per the extant instruction of 5 years transfer policy and upon due consideration to his physical disability, the petitioner has been transferred to Tupudana Branch, which is nearby Branch from his place of stay and only 3.5 km away from Singhmore Branch and said Tupudana Branch is situated on the ground floor making it convenient for the petitioner and as such, order of transfer is fully justified.

The Court held that the order of transfer requires no interference since the order has been passed upon due consideration of the petitioner’s disability. The Court also observed that transfer is an incident of service; no right has accrued to an employee to stay at a particular place. Further, petitioner cannot be exempted from the transfer policy  since, no statutory provisions have been violated and the petitioner has been transferred to Tupudana Branch after giving due consideration to his physical disability, which is just 3.5 km from the Singhmore Branch and it is running its business in the ground floor which makes it more convenient to the petitioner to work there with ease.[Satish Kumar Singh v. SBI, 2019 SCC OnLine Jhar 1359, decided on 12-09-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Force Tribunal (AFT): A Division Bench of Justice Virender Singh (Chairperson) and Air Marshal B.B.P Sinha (Member) dismissed an application by the applicant under Section 14 of the Armed Forces Tribunal Act, 2007.

The applicant was enrolled in Army in 2003 as a Signalman and was invalided out from service in 2012 in low Medical Category under Rule 13(3) III (iii) of the Army Rules, 1954. At the time of invalidment from service, the Invaliding Medical Board (IMB) assessed his disability ‘Alcohol Dependence Syndrome’ at 1-5% for life and opined the disability to be neither attributable to nor aggravated (NANA) by service and not connected with service due to habitual disorder. The applicant approached the respondents for grant of disability pension but it was rejected.

The following were the two issues before the Tribunal:

  1. Whether the disability of the applicant i.e. ‘Alcohol Dependence Syndrome’ could be attributable to or aggravated by military service?
  2. Whether the disability percentage has been decided correctly?

The Tribunal held that alcohol dependence syndrome is primarily a disease where an individual cannot control his excessive drinking habits. The disease leads to being drunk while on duty and poor performance during discharge of official duties. “It is also very clear that drinking Alcohol and exercise of discipline and moderation while drinking is a matter of personal choice”. They further held that the military doctors and the organization make all the efforts to help a soldier who becomes a victim of ‘Alcohol Dependence Syndrome’ and only when all efforts fail the soldier is invalided out on the same ground. As far as attributability of the disability, it was neither attributable to nor aggravated by military service.

While calculating the disability percentage, the Tribunal relied on the Supreme Court’s Judgment in Sukhwinder Singh v. Union of India, (2014) STPL (WEB) 468 SC where they held that any disability not recorded at the time of recruitment must be presumed to have been caused to be a consequence of military service. The benefit of doubt must be in favour of the member of the Armed Forces. Wherever a member of the Armed Forces is invalided out of service, it perforce has to be assumed that their disability was found to be above twenty per cent.

Considering all issues, the Tribunal agreed with the opinion of IMB that the disease of the applicant was neither attributable to nor aggravated by military service and decided to not interfere with this process or provide any other relief to the applicant.[Kailash Joshi v. Union of India, 2019 SCC OnLine AFT 4366, decided on 16-08-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal (AFT): Justice S.V.S. Rathore and Air Marshal BBP Sinha (Member) partly allowed an application to consider applicant’s disability as aggravated by military service. The applicant filed a petition for grant of disability pension with a delay of 09 years, 09 months and 09 days. He was commissioned fully fit as an officer in the Indian Army in 1972 and was discharged from service in low medical category in 1997. The Release Medical Board (RMB) assessed his disabilities (i) I.H.D. ICDN 411 (CAD) at 11-14% for two years and (ii) Ankylosing Spondylitis at 11-14% for two years, composite assessment at 20% for two years as neither attributable to nor aggravated (NANA) by military service. Therefore, his disability pension claim was rejected. The respondents contended that the applicant approached the Tribunal after a gap of 20 years and such inordinate delay cannot be condoned. The Tribunal rejected this contention of the respondents primarily because the pension is a recurring cause of action. They further contended that disabilities of the applicant have been regarded as NANA by the RMB, hence the applicant is not entitled to disability pension. They further submitted that an incumbent is granted disability pension when invalidated out of service on account of a disability which is attributable to or aggravated by military service and is assessed at 20% or over. On the other hand, the applicant argued that he had picked up these diseases due to stress and strain of service. 

The Tribunal went on answering as to whether the disabilities of the applicant are attributable to or aggravated by military service? The Tribunal relied on Dharamvir Singh v. Union of India, (2013) 7 SCC 316 to address the law on attributability/aggravation of a disability where the Supreme Court took note of the provisions of the Pensions Regulations, Entitlement Rules and the General Rules of Guidance to Medical Officers to sum up the current legal position. ‘Ankylosing Spondylitis’ is an inflammatory disease which, over time, can cause some of the vertebrae in the spine to fuse resulting in a hunched-forward posture. This disease has no known specific cause, though genetic factors seem to be involved. Since the cause of the disease is not clearly known and there is no mention of genetic loading in RMB, therefore, the Tribunal gave the benefit of doubt in favour of the applicant.

The Tribunal held that the RMB had denied attributability/aggravation to the applicant only by endorsing a cryptic sentence that his disability is not connected with military service and that the disabilities of the applicant should be considered as aggravated by military service. The applicant was held entitled to 20% disability element (composite) for both the disabilities for two years after discharge which would round off to 50%. However, the Supreme Court in the case of Shiv Dass v. Union of India, (2007) 9 SCC 274 held that arrears of disability pension are to be restricted to three years prior to the filing of the application if the same has been filed belatedly and the delay is condoned. Since the applicant approached the Tribunal after a gap of more than 09 years, he was not entitled to any arrears due to the law of limitations.[DS Jasrotia v. Union of India, 2019 SCC OnLine AFT 3883, decided on 15-07-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Force Tribunal (AFT): The Bench of S.V.S. Rathore, Member (J) and Air Marshall BBP Sinha, Member (A) partially allowed a petition seeking rounding-off’ of the disability pension from 20% to 50% with effect from 01-06-2000 to 31-12-2015.

In the pertinent case, the applicant was commissioned in the Army Medical Corps (AMC) in medical category SHAPE-I on 06-06-1976 and promoted to the rank of Lieutenant Colonel. The applicant was superannuated on 31-05-2000 in the low medical category. The applicant is entitled to disability element and is in receipt of the benefit of rounding off and related arrears of his disability pension at 50% w.e.f. 01-01-2016 till date. The primary claim of the applicant is that he should also be given the benefits of rounding off and the related arrears w.e.f. 01-06-2000, i.e. w.e.f. the date of his discharge till 31-12-2015. The respondents contended that for cases of superannuation or normal retirement, the applicant has been extended the same benefit w.e.f. 01-01-2016.

The Tribunal while placing reliance on Shiv Dass v. Union of India, (2007) 9 SCC 274 held that the benefit of rounding off of disability pension should be granted to the applicant three years prior to filing of the present O.A. The O.A. was filed on 25-04-2018. Since the applicant has already received the benefit of rounding off of disability element for the period 01-01-2016 till date, he is entitled to receive the arrears for rounding off of disability element for the period from 25-04-2015 to 31-12-2015. Thus, the Tribunal partially allowed the petition.[Rameshwar Dayal v. Union of India, 2019 SCC OnLine AFT 927, Order dated 28-02-2019]

Case BriefsSupreme Court

Supreme Court: The bench of Ashok Bhushan and KM Joseph, JJ held that prescription of disability to the extent of 40%-50% for recruitment for the post of Civil Judge was valid and did not contravene any of the provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 or any other statutory provision.

It was dealing with a matter where an advocate having 70% disability, had challenged a Notification dated 08.08.2014 issued by Tamil Nadu Government stipulating a limit of 40%-50% disability for the selection for the post of Civil judge.

The Court said:

“A judicial officer in a State has to possess reasonable limit of the faculties of hearing, sight and speech in order to hear cases and write judgments and, therefore, stipulating a limit of 50% disability in hearing impairment or visual impairment as a condition to be eligible for the post is a legitimate restriction i.e. fair, logical and reasonable.”

The appellant had submitted that restricting the disability to 40%-50% in reference to persons having partial blindness is clearly denying the of reservation as provided under Section 33 of the 1995 Act, 1995. Section 33 of the 1995 Act requires that 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 Blindness or low vision.

Disagreeing with the said contention, the Court said:

“The present is not a case where the respondent has not reserved the post for partial disability as required by Section 33 of the Act, 1995. Thus, requirement of reservation as mandated by Section 33 is clearly fulfilled. The issue is regarding eligibility of appellant to participate in the selection and as to whether the requirement in the advertisement that only those, who suffer from disability of 40%-50% are eligible, is contrary to the Act, 1995 or is in breach of any statutory provision.”

It was, hence, noticed that when the State, High Court and Public Service Commission are of the view that disability, which is suitable for appointment on the post of Civil Judge should be between 40%-50%, the said prescription does not violate any statutory provision nor contravene any of the provisions of the 1995 Act. Hence, it was well within the power of appointing authority to prescribe eligibility looking to the nature of the job, which is to be performed by holder of a post. [V. Surendra Mohan v. State of Tamil Nadu, 2019 SCC OnLine SC 53, decided on 22.01.2019]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Judge Bench comprising of Rajiv Sharma, ACJ and Manoj Kumar Tiwari, J. disposed of a PIL for the rights of people with disabilities.

The petitioner through his letter sought to draw the attention of the court towards the grievances of the people who had faced problems under the Aadhaar regime whereby the aadhaar cards could not be accessed by them due to their disability.

Considering it to be a sensitive matter the Court took suo motu cognizance of the same by appraising the principle of lex non cogit ed impossibilia (law does not enforce impossibilities) and stated that the approach of the entire machinery should be humane plus it should evolve a process itself taking into consideration the difficulties faced by the disabled persons.

Accordingly, the Court directed the District Magistrate, Almora to ensure that the Aadhaar Cards of the said persons were prepared within three days from this date and, thereafter, respondent shall release the disability pension to them within seven days along with arrears.[Laxman Singh Negi v. State of Uttrakhand, 2018 SCC OnLine Utt 794, Order dated 29-08-2018]

Case BriefsHigh Courts

Uttaranchal High Court: The Division Bench comprising of Lok Pal Singh and Rajiv Sharma JJ., laid down a series of directions by disposing of the petition focusing on the needs of children with disabilities and stating that:

“Children with special needs should have equal opportunities”.

The petitioner had placed the list of children with special needs in the State of Uttarakhand in tabular form for which the Respondent filed the counter affidavit stating the steps taken to promote the special children’s education. The point of concern in this matter was that, the Respondents even after taking several steps were unable to take the steps in letter and spirit of the Right of Children to Free and Compulsory Education Act, 2009 along with the rules framed by the State of Uttarakhand, the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.

Therefore, the High Court on observing the inadequate step been taken by the respondents issued mandatory directions in light of giving access to free education in an appropriate environment to every child with disability also stressing upon the endeavor to be made to promote the integration of a child with disabilities in the normal schools. The following directives were issued:

  • Special Educators to be appointed in both Government aided and unaided private schools in State of Uttarakhand.
  • Schools to make premises barrier-free and suitable for free movement of children with special needs.
  • Special teacher’s training institutions in accordance with Section 29 of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
  • Sufficient funds to be released in order to impart education in ordinary schools or special schools.
  • Construction of a sufficient number of hostels.
  • All the necessities required including the books, uniforms, etc. To be provided to the children before the start of the academic session.
  • Scholarship of Rs 1,000/- per month each to be provided to children with special needs.
  • Curriculum to be prepared focusing on the difficulties that they face.
  • Amanuensis to be provided to the blind students in all the educational institutions throughout the State of Uttarakhand. [Kamal Gupta v. State of Uttarakhand,2018 SCC OnLine Utt 677, dated 11-07-2018]
High Courts

Delhi High Court: Where an NGO working for the protection of the rights of blind people, had prayed for modification of the Centre’s 2013 office memorandum (OM) to provide for computing the posts reserved for disabled persons in Group’s A, B, C and D of government departments, the Court has asked the Centre to modify the said OM as per the directions of the Supreme Court in judgment dt.08-10-2013. Counsel for the appellant S. K. Rungta contended that OM dt. 03-12-2013 had completely ignored the manner of computation and maintenance of vacancy based roster and the same not being in compliance with the directions of the Supreme Court, a fresh OM should be issued. Moreover, the Committee constituted as per order dt.19.12.2008 has to be revived for directing the establishments and Public Sector Undertakings to provide information with regard to the backlog vacancies upto 2013 and fill them by conducting special recruitment process.

Earlier petitioner had filed a PIL, citing illegality in the 2013 OM wherein reservation was not given to blind and low vision candidates under Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 in all recruitments in government departments from 1996 till date. The Court via order dt.19-12-2008 W.P.(C) No.15828/2006 directed computation of reservation on the basis of total cadre strength and formation of a Committee to get information on vacancy backlog in various departments and to carry special recruitment drives after making reservation provisions for disabled persons and obtaining Committee’s clearance on the same. However, the Supreme Court in CA No. 9096/2013, altered the above manner of computation, holding that reservation should be computed on the basis of total number of vacancies in the cadre strength. Noting the above guidelines in judgment dt. 08-10-2013 the Court held that though the manner of computation of reservation was altered, the direction with regard to modification of OM remained intact and the respondents are bound to implement those guidelines. However, the relief sought by the petitioner for revival of the Committee and the other directions cannot be granted.National Federation of Blind v. Union of India, CM. No. 230/2014, decided on 17-07-14

To read the full judgment, refer to SCC OnLine