disabled persons

Case BriefsHigh Courts

Kerala High Court: The Division Bench of K. Vinod Chandran and V. G. Arun, JJ., addressed the present petition filed by BSNL against the order of Central Administrative Tribunal.

The Tribunal had upheld the claim of the respondent for consideration of promotion as Sub Divisional Engineer (“SDE”) in 3% disability quota under the Persons with Disabilities Act, 1995; thereby allowed the O.A. while relying on the judgment in Rajeev Kumar Gupta v. Union of India, (2016) 13 SCC 153.

BSNL contended that there was a reference made by another Division Bench of the Supreme Court regarding the judgment relied on the Tribunal. Hence, the order of the Tribunal suffered with flaws.

The Court observed that the reference had now been answered by the Supreme Court in Siddaraju v. State of Karnataka, 2017 SCC OnLine SC 1940, whereby the Larger Bench had affirmed the decision of the Division Bench. Therefore, now from promotions to vacancies, even where there is no direct recruitment, the 3% quota for disabled persons has to be complied with. The Court upheld the order of the Tribunal and directed BSNL to consider the respondent for promotion to the post of SDE on completion of three years as Junior Telecom Officer (“JTO”) w.e.f. 23-07-1996. It was further directed that promotion to the post of Divisional Engineer should also be considered on the expiry of six years from the date of notional promotion as SDE.

Counsel for BSNL, T. Sanjay sought time for the purpose of enabling the organisation to get the details of the disabled persons and consider them according to their seniority to be accommodated in the 3% vacancies on All India basis, contending that now when promotions were to be made on the basis of quota of 3% as prescribed under the Act of 1995, it had become necessary that the other disabled persons, who might be entitled to be considered, also be given an opportunity.

The Court accepted the prayer of BSNL and granted it time of four months. The Court noticed that the respondent had applied for voluntary retirement from the post of Divisional Engineer and if promotions were granted to him notionally from an earlier date, fixation of salary would have to be carried out and increments too had to be granted in the higher scale. It was held that though on such notional revision the respondent would not be entitled to any arrears of pay, the retirement benefits including any ex-gratia amounts paid in lieu of voluntary retirement, should be revised in accordance with that and the arrears if any should be paid as well. [Bharat Sanchar Nigam Ltd. v. M.G Prabhakara Panicker,  2020 SCC OnLine Ker 8664, decided on 23-01-2020]

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 BriefsSupreme Court

Supreme Court: Considering the need of complying with the judgment rendered in Justice Sunanda Bhandare Foundation vs. Union of India, (2014) 14 SCC 383 and the provisions of the Rights of Persons with Disabilities Act, 2016, the 3-Judge Bench of Dipak Misra, A.M. Khanwilkar and M.M. Shantanagouda, JJ directed all the States and the Union Territories to file compliance report within twelve weeks

In the Justice Sunanda Bhandare Foundation case, where a declaration was sought that denial of appointment to the visually disabled persons in the faculties and college of various universities in the identified posts is violative of their fundamental rights guaranteed under Articles 14 and 15 read with Article 41 of the Constitution of India, the 3-judge bench opined that the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 is to be treated as an enactment for empowerment of the persons under disability and further expressed its concern with regard to the apathy shown by various State Governments and the instrumentalities of the States.

However, in the present case, taking note of the fact that the Parliament, realizing the national need of the rights of the persons under disability and commitment to the Convention of the United Nations General Assembly, had repealed the 1995 Act and brought in The Rights of Persons with Disabilities Act, 2016, the Court noticed that more rights have been conferred on the disabled persons and more categories have been added. That apart, access to justice, free education, role of local authorities, National fund and the State fund for persons with disabilities have been created. The 2016 Act is noticeably a sea change in the perception and requires a march forward look with regard to the persons with disabilities and the role of the States, local authorities, educational institutions and the companies. It was hence said that the laudable policy inherent within the framework of the legislation should be implemented and not become a distant dream. Immediacy of action is the warrant.

The Court said that the States and the Union Territories must realize that under the 2016 Act their responsibilities have grown. When the law is so concerned for the disabled persons and makes provision, it is the obligation of the law executing authorities to give effect to the same in quite promptitude. It was also said that a duty is cast also on the States and its authorities to see that the statutory provisions that are enshrined and applicable to the cooperative societies, companies, firms, associations and establishments, institutions, are scrupulously followed. The Court said that the steps taken in this regard shall be concretely stated in the compliance report within the time stipulated and listed the matter to be taken up on 16.08.2017. [Justice Sunanda Bhandare Foundation v. Union of India, 2017 SCC OnLine SC 481, order dated 25.04.2017]

 

Case BriefsSupreme Court

Supreme Court: Modifying the order dated 30.11.2016 where it was directed that all the cinema halls in India shall play the National Anthem before the feature film starts and all present in the hall are obliged to stand up to show respect to the National Anthem, the 3-Judge Bench of Dipak Misra, A.M. Khanwilkar and M.M. Shantanagouda, JJ directed that the persons who are wheel chair users, those with autism, persons suffering from cerebral palsy, multiple disabilities, parkinsons, multiple sclerosis, leprosy cured, muscular dystrophy and deaf and blind be treated not to be within the ambit of the said order.

The Court had, on 30.11.2016, laid down certain directions to be followed in order to ensure respect towards the National Anthem as well as to the National Flag as it is the sacred obligation of every citizen to abide by the ideals engrafted in the Constitution and one such ideal is to show respect for the National Anthem and the National Flag. [Shyam Narayan Chouksey v. Union of India, 2017 SCC OnLine SC 433, order dated 18.04.2017]

Case BriefsSupreme Court

Supreme Court: In the matter where the employees of Prasar Bharati, who are ‘persons with disability’ (PWD), had alleged that they have been deprived of the statutory right under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 with respect to the Group A and B posts out of the four A to D Groups of Prasar Bharati, the Court directed the Government to extend three percent reservation to PWD in all identified posts in Group A and Group B, irrespective of the mode of filling up of such posts.

It was contended by the respondents that as per the Regulations framed under the Prasar Bharati (Broadcasting Corporation of India) Act, 1990, Memorandum II provides for reservation in favour of PWD to the extent of three per cent in all the IDENTIFIED POSTS in Prasar Bharati, when these are filled up by direct recruitment. However, it provides for three per cent reservation in IDENTIFIED POSTS falling in Groups ‘C’ and ‘D’ irrespective of the mode of recruitment i.e. whether by direct recruitment or by promotion. As a consequence, the statutory benefit of three per cent reservation in favour of PWD is denied insofar as IDENTIFIED POSTS in Groups ‘A’ and ‘B’ are concerned, since these posts, under relevant regulations of Prasar Bharati are to be filled up exclusively through direct recruitment.

The bench of J. Chelameswar and Abhay Manohar Sapre, JJ rejected the said contention and held that once a post is identified under Section 32 of the 1995 Act, it means that a PWD is fully capable of discharging the functions associated with the identified post. Once found to be so capable, reservation under Section 33 of the 1995 Act to an extent of not less than three per cent must follow. Once the post is identified, it must be reserved for PWD irrespective of the mode of recruitment adopted by the State for filling up of the said post. The Court, hence, held the impugned memoranda to be illegal and inconsistent with the 1995 Act. [Rajeev Kumar Gupta v. Union of India, 2016 SCC OnLine SC 651, decided on 30.06.2016]

Case BriefsSupreme Court

Supreme Court: “Non-disabled people do not understand disabled ones.” This is what the bench of Dr. A.K. Sikri and R.K. Agrawal, JJ said when it was deciding the matter relating to de-boarding of the petitioner from the plane of a private airline for being disabled. The Court awarded a sum of Rs. 10,00,000 as damages to be payable to the petitioner for the mental and physical suffering experienced by her and also unreasonable discrimination against her.

In defence of such an unreasonable action on part of the crew members, the airline had taken the stand that the person having cerebral palsy would, in emergency situation, not be able to respond to the safety instructions and she is a risk to herself and potential danger to the lives of co-passengers also. The Court said that this act was contrary to the Civil Aviation Requirements, 2008 which prohibits the airlines from refusing to carry a person with disability or person with reduced mobility. It was further said that the manner in which she was treated while de-boarding from the aircraft, depicts total lack of sensitivity on the part of the officials of the airlines.

The petitioner, an Indian citizen with cerebral palsy, is an eminent activist and a Board member of the National Trust, an organization of the Government of India, set up under the National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities, Act, 1999. [Jeeja Ghosh v. Union of India, 2016 SCC OnLine SC 510, decided on 12.05.2016]