Definition of Disability

Rasala Gopal vs. Andhra Bank and others

Filed Under: Section 2(b) of the Persons with Disabilities Act, 1995. Articles 14 and 16 of the Constitution of India
Petitioner: Rasala Gopal
Respondents: Andhra Bank and others
Citation: 2003-II-LLJ 916
Court: In the High Court of Andhra Pradesh
Judge: L. Narsimha Reddy Rasala Gopal filed this petition challenging Section 2(b) of the Persons with Disabilities Act. He claimed that the Section was illegal, arbitrary, discriminatory and violative of Articles 14 and 16 of the Indian Constitution.

Facts

Rasala Gopal was born with only one functional eye. The Andhra Bank had issued a notification in a newspaper inviting applications for jobs in several categories. They had also provided reservation in favour of physically handicapped candidates; with regard to visual impairment, they had followed the definition given under Section 2(b) of the Act.

According to him, a person born with one eye is always certified as suffering from 30% disability. He further stated that he was not treated as a disabled person because of the definition of 'blindness' under Section 2 of the Act. On the other hand he was not treated at par with general candidates on account of the 30% disability suffered by him.

Observations of the Court

It was observed that definitions of disability in the Act were based on elaborate scientific study and physical data. (Refer to quotes). The Court further elaborated on the fact that every small defect cannot be treated as a disability unless the deficiency or disability is to such an extent that it would differentiate him from people with ordinary faculties.

The Court opined that Rasala's lawyer was not able to place any data before the Court to show that his level of vision was such, as would render him physically handicapped. The Judge also observed that a lot needed to be done to attack the validity of any provision of the Act.

On the second point as to treating Rasala at par with general candidates, the Court observed that denying him the benefit of treatment at par with general candidates was not justifiable and issued directions to treat him as a general category candidate and dismissed the petition.

Sections Referred:

  • Section 2(b) of the Persons with Disabilities (Equal opportunities, Protection of Rights & Full Participation) Act, 1995
  • Articles 14 and 16 of the Constitution of India

Quotes from the Judgment:

"The Parliament had adopted certain parameters to define the physical disability on several categories. The definitions are based on the elaborate scientific study and physical data collected, before the Act came to be enacted. While extending some benefits or providing for special treatment, the Parliament is always within its competence stipulate the necessary parameters. It is not as if, any deficiency, vis-à-vis the perfect vision, hearing etc., should be treated as disability by itself. By their very nature, such faculties are bound to vary from person to person. It is only when the disability or deficiency is to such an extent as would differentiate the person from other with ordinary faculties, that he can be treated as physically disabled. If every minute deficiency as to functioning of the sense organs is to be treated as a physical disability, a situation would arise wherein the exception would eat away the rule".

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Kumar Bharat Prasad Narian Singh vs. Airports Authority of India

Filed Under:Articles 14 and 226 of the Constitution of Indi Sections 2 & 47 of the Persons with Disabilities Act, 1995
Appellant: Kumar Bharat Prasad Narian Singh
Respondents:Airports Authority of India
Citation:2005 V AD (Delhi) 513
Court:In the High Court of Delhi
Judge:Vikramjit Sen

Facts

Kumar Bharat Prasad Narian Singh was promoted as an Aerodrome Officer. On creation of the National Airports Authority, his services were transferred from the Civil Aviation Department to the newly created authority. Thereafter, he was selected as a Co-pilot in the pay scale of Rs. 3700-5000/- (revised Rs. 17,500-22,500/-) later increased to Rs. 4100-5300/- (revised Rs. 18,500-23,900/-). After a period of about 5 years he suffered from a heart attack while on duty and as a result he was declared unfit to fly. After two years his services as a Co-pilot were terminated but on the very same day he was given a fresh appointment as an Aerodrome Officer in the pay scale of Rs. 2200-4000/- (revised Rs. 13,000-18,250/-). While accepting this re-employment on humanitarian grounds and expressing deep gratitude, Kumar drew attention of the Authorities to the fact that persons junior to him had become Senior Aerodrome Officers. Thereafter he made repeated representations in writing seeking his placement in an equivalent rank and the same pay scale of a Co-pilot, but all went in vain.

He then filed this Writ Petition.

Arguments made on behalf of Kumar

On Kumar’s behalf it was contended that the Airports Authority of India should be directed to appoint him to an equivalent post in the pay scale of a Co-pilot with all consequential monetary and other benefits from the time his services as a Co-pilot were terminated. In the course of the arguments, he also asserted that a fellow officer Mr. KPS Nair, with a similar medical disability,had been reinstated in a post equivalent to that of a Co-pilot and his benefits and emoluments had been protected and were continuing.

Arguments made on behalf of Airports Authority of India

The lawyer on behalf of the Airports Authority of India argued that the termination of Kumar’s services as a Co-pilot had been carried out with his own consent. It was also submitted that this event had taken place in 1995 and this petition should not be entertained because it had been delayed.

Observations of the Court

The Court examined the relevant sections of the Act and pointed out that it was unfair to deprive and exclude a person suffering from any physical/medical disorder other than those included in the provisions of the Act. The Court held that a wider meaning could be given to the term ‘disability’. In reference to this the Court referred to a previous judgment given by the Supreme Court. According to the Court, there was no reason to conclude that a person suffering from a heart disease had been specifically kept beyond the scope of the Act. This was especially so when the employer had decided that the employment of the concerned employee must be brought to a premature cessation because of a severe heart attack.

The Court also pointed out that Kumar had already worked as an Aerodrome officer and it had not been contended by the Airports Authority of India that he was not able to fulfill his functions. The main question was whether he could be placed in the pay scale of an Aerodrome officer and receive the emoluments which he had received prior to his heart attack. According to the Court there was no reason for not protecting the financial package received by a disabled person who had been placed in a lower post because his disability did not permit him to serve in the higher post.

With respect to the arguments raised by the lawyer on behalf of the Airports Authority of India; the Court dismissed both of them. According to the Court, consent should be freely given for it to be legally effective and it was not possible to imagine that a person who had recently suffered the trauma of a heart attack and was facing the prospects of being rendered unemployed would give his free and informed consent to the cessation of his services. With respect to the contention that the Petition had been delayed and therefore should not be considered, the Court pointed out that Kumar had made several representations before filing the writ petition. The Court also took into account the benefits given to Mr. Nair who had also suffered from a similar disability. The Court held that Kumar’s case should also be treated in a similar manner.

Accordingly the petition was allowed and the Airports Authority of India was directed to place Kumar in the pay scale of a Co-pilot. The Court also held that the Airports Authority of India was obliged to locate promotional avenues for Kumar keeping in view his disability. It was further stated that Kumar would be entitled to arrears of pay and the Airports Authority was directed to calculate necessary payment and to pay it to him within a period of four weeks.

Sections Referred:

  • Article 14 and 226 of the Constitution of India
  • Section 2 and 47 of the Persons with Disabilities Act, 1995

Cases Referred:

  • Narendra Kumar Chandla vs. State of Haryana and others, (1994) 4 SCC 460

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Dilbagh Singh vs. Delhi Transport Corporation

Filed Under:Article 226 of the Constitution of India Sections 72, 47, 59, 62 and 42 of the Persons with Disabilities Act, 1995
Appellant: Dilbagh Singh
Respondents:Delhi Transport Corporation
Citation: 123 (2005) Delhi Law Times 318
Court:In the High Court of Delhi
Judge: S Ravindra Bhat

Facts

Dilbagh Singh was recruited as a driver by the DTC. He worked in that capacity for a period of about 8 years. One day, as he was driving a bus from Delhi to Balaji, the bus was intercepted and surrounded by a mob in a village. The bus was not allowed to proceed further and the passengers were forced to get down. The mob pelted stones at the bus, damaging it. It also sought to put fire on the bus. Dilbagh intervened and was attacked by the mob. The mob rained lathi blows on him. He was hit on the back of his head and lost consciousness. Thereafter the police reached the spot and Dilbagh was taken to a hospital where he regained consciousness and was given medical attention. After his discharge from the hospital he drove the bus back to the depot despite his injuries. Thereafter he took leave for a few days.

After about 5 years, a medical examination was conducted and Dilbagh received an order of premature retirement on the ground that he was medically unfit. He then filed a Writ Petition in the High Court, which was disposed of with an order that he was entitled to compensation as per the formula evolved by the Supreme Court. With respect to the question of relief of employment, the Court granted him liberty to seek it in accordance with the law.

Dilbagh subsequently filed another writ petition in the High Court and prayed that his order of premature retirement be quashed and the DTC should offer him employment. This petition was disposed of with the liberty for him to approach the Chief Commissioner.

Dilbagh approached the Chief Commissioner, however his requests were not considered. He again approached the Court and the Court directed the Chief Commissioner to decide Dilbagh’s complaint within three weeks. The Chief Commissioner directed Dilbagh to furnish a medical certificate, which stated that he was suffering from a disability more than 40%. Thereafter, Dilbagh got himself examined by the Safdarjung hospital where he was issued a certificate, which stated that Dilbagh’s visual disability was less than 20%. This certificate was furnished to the Chief Commissioner.

The Chief Commissioner rejected Dilbagh’s claim and stated that he could not be called a person with disability under the Persons with Disabilities Act because in order to qualify for relief under its provisions the applicant should have suffered or incurred a disability, which is not less than 40%.

Dilbagh then filed this appeal. The DTC reiterated the argument extended by the Chief Commissioner. The DTC also added that Dilbagh had already been paid compensation and therefore he could not seek relief for reinstatement.

Arguments made on behalf of Dilbagh Singh:

Dilbagh’s lawyer submitted that the denial of relief under Section 47 was unwarranted. It was argued that the provision was beneficial and obliged every employer to adopt a non-discriminatory approach. She also stated that Dilbagh had incurred the disability while he was on duty and had risked his own health in order to protect the property of the DTC. Instead of rewarding his services, the DTC had dismissed him. The lawyer also referred to several previous judgments in order to support the arguments.

Observations of the Court

The Court examined the various sections of the Act along with the arguments extended by both the parties. The Court held that Section 47 of the Act was enacted as an absolute, unalterable and non-discriminatory standard to be followed by every establishment, in relation to their disabled employees at the work place. According to the Court the DTC was under a positive obligation to give some work or job to the disabled employees, who had suffered injury or incurred disability. Therefore the defense of the DTC that Dilbagh could not be given employment was unacceptable.

The Court then took up the second issue of whether Dilbagh was a “person with disability” under section 2(t) of the Act, which mandates 40% disability. In the context, the Court referred to Section 47 which stated “no establishment shall dispense with, or reduce in rank, an employee who acquires disability during his service.” according to the Court this section did not refer to the phrase “person with disability” but instead used the expression “who acquires disability.” According to the Court, disability was defined expansively and included both blindness and low vision. Hence, the view taken by the DTC and the Chief Commissioner was not justified.

In light of this discussion the Court held that Dilbagh was entitled to relief. The Court quashed the order given by DTC of prematurely retiring him. The DTC was directed to re-instate Dilbagh within a period of six months to a suitable post of equivalentrank and to grant continuity of service in regard to matters such as pay revisions, allowances, increments, seniority etc. Furthermore, the Court also held that Dilbagh should be entitled to arrears of salary for the period from which he filed claim for reinstatement before the Chief Commissioner. In the event of non-payment within eight weeks, the DTC was liable to pay interest on that amounts @ 7% p.a. till the date of payment.

Accordingly, the Writ Petition was allowed with the costs assessed at Rs. 5000, which were to be paid within 6 weeks to Dilbagh.

Sections Referred:

  • Article 226 of the Constitution of India
  • Section 72, 47, 59, 62 and 42 of the Persons with Disabilities Act, 1995

Cases Referred:

  • DTC vs. Rajbir Singh; 100 (2002) DLT 111
  • Baljeet Singh vs. DTC; 83 (2000) DLT 286
  • Virender Kumar Gupta vs. DTC, 2002 (4) LLJ 1314
  • Kuldeep Singh vs. DTC; 2003 (1) LLJ 672
  • Kunal Singh vs. Union of India; II (2003) 4 SCC 524
  • Collins vs. Royal National Theatre Board Ltd; 2004 (2) All ER 851
  • Meike vs. Nottinghamshire County Council; 2004 (4) All ER 97
  • Relaxation Group vs. Rhys Harver; 2003 (4) All ER 1113
  • Rakesh Chandra Narayan vs. State of Bihar; 1986 (Supp) SCC 576
  • BR Kapoor vs. Union of India; AIR 1990 SC 662
  • National Federation of Blind vs. Union Public Service Commission; 1993 (2) SCC 411
  • Consumer Education & Research Centre vs. Union of India; (1995) 3 SCC 42
  • Krishan Chander vs. DTC; 115 (2004) DLT 558
  • Vijender Singh vs. DTC; 105 (2003) DLT 261
  • DTC vs. Harpal Singh; 105 (2003) DLT 113
  • Ranbir Singh vs. DTC; 97 (2002) DLT 19
  • Savitri vs. Govind Singh Rawat; 28 (1985) DLT 437 (SC)

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Smt. Chuneela Kumari vs.Karunashanker

Filed Under: M.P. Accommodation Control Act
Applicant: Smt. Chuneela Kumari
Non Applicant: Karunashanker
Citation: AIR 1988 MP 232: (2005) 1 PDD (CC) 142s
Court: In the High Court of Madhya Pradesh
Judges: Honorable Mr. Justice B.C. Verma

Facts

Karunashanker, Chuneela Kumari’s landlord filed an eviction petition against her, claming that he needed the premises for his residence.

While the above eviction petition was pending, the rent control rules underwent a change. As a result, certain cases pending before the Rent Controlling Authority were transferred to the Civil Court.

Karunashanker submitted an application saying that his petition should continue before the Rent Controlling Authority on the ground that he was a physically handicapped person within the meaning of section 23-J (iv) of the M.P. Accommodation Control Act (as amended).

Chuneela Kumari opposed this application filed by Karunashanker on the ground that it was not maintainable before the Rent Controlling Authority. However, the Authority continued to hear the case. Thereafter, Chuneela Kumari filed this revision petition.

Observations of the Court

The High Court upheld the order of the Rent Controlling Authority holding that it (the Rent controlling Authority) had the jurisdiction to determine whether Karunashankar’s eviction petition should continue before it or not.

Karunashanker had contended before the Authority that he was a physically handicapped person within the meaning of section 23-J (iv) of the Accommodation Control Act as he was suffering from cancer.

The High Court held that the phrase ‘physically handicapped person’ includes a person suffering from malignancy in any part of his/her body. In addition, it was stated that a man suffering from malignancy in any part of his body might apparently not appear to be disabled in the sense of having lost any limb or any other faculty. That however does not mean that he is of sound health without any physical disability. (Refer to quotes) It was further observed that there was no reason to restrict the scope of the phrase ‘physically handicapped person’ by to orthopedic deformity only, like maiming of limb etc.

Held:The Revision Petition was dismissed

Quotes from the Judgment:

“Malignancy in my opinion, is a physical disability as it has the tendency to reduce or impair functional capacity. Such a person must be held a ‘physically handicapped person’ within the meaning of the clause (iv) of S. 23-J.” Para 5, page 147

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Km C.P. Prathima Devi vs. the Medical Council of India, New Delhi and Otherss

Filed Under: Section 33 of the Indian Medical Council Act, 1956
Appellant: Km C.P. Prathima Devi
Respondent: Medical Council of India, New Delhi and Others
Citation: AIR 2000 Kant 197, AIR2000KAR197, 2000(3) KarLJ505
Court: In the High Court of Karnataka at Bangalore
Judge: G.C. Bharuka

Facts

C.P. Prathima Devi was admitted to the M.B.B.S. Course in A1-Ameen Medial College Bijapur, during the academic year 1995-96. After her admission to the course however, she developed a serious ailment for which she was treated by a specialist in Bangalore. She was advised that her follow up treatment, which was to be undertaken every week, should only be at Bangalore.

Thus, Prathima submitted an application to the Medical Council of India (MCI) seeking migration, along with a ‘no objection’ certificate from the Principal of A1-Ameen College. Her request was rejected. Aggrieved, she filed this petition in the Karnataka High Court seeking directions to the MCI to consider her request.

Arguments made on behalf of Prathima

It was contended on behalf of Prathima Devi that MCI (Medical Council of India) had not given any reasons for rejecting her transfer application. It was further argued that if the materials placed by her were examined properly it would be clear that she had a right to migration to the College at Tumkur, near Bangalore where she was being treated.

Arguments made on behalf of MCI

On behalf of MCI it was argued that all the materials submitted by Prathima had been placed before the statutory Sub-Committee for considering her case. The Sub-Committee had however, concluded that the case could not be considered on compassionate grounds such as ‘disability due to illness’. The plea of ailment taken by her did not amount to causing disability and hence the migration application could not be allowed.

Observations of Court

It was held by the Court that Prathima had fulfilled all the procedural formalities in applying for migration. In view of the object of the migration provision, it was concluded that in proper cases the Council could permit migration if the candidate was found to be suffering from an illness of such a nature for which there was no effective medical facility, or treatment, at the place where he/she was studying.

For this purpose the MCI asked the candidate concerned to furnish dependable materials to show that at the place of his/her original admission, such facilities were not available but were available only at the place where he/she was seeking migration.

It was added that apart from this the MCI through its own agency could ascertain the said facts and could exercise its discretion in granting the permission for migration.

However, while rejecting the application, it was stated that the MCI Sub-Committee must assign reasons for not accepting the request made by the candidate, so that the candidate as well as the Court in the judicial review were aware of the order sought. The Court therefore, set aside the order of the MCI and directed it to reconsider her application.

The petition was allowed.

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Km. Angna Sinhal vs. Medical Council of India, New Delhi and others

Filed Under: Regulation 6 of Regulations on Graduate Medical Education, 1997;
Indian Medical Council Act, 1956
Section 2 of Persons with Disabilities (Equal Opportunities, Protection of Right and Full Participation) Act, 1995 
Appellant: Km. Angna Sinhal
Respondent: Medical Council of India, New Delhi and others
Citation: 1998(4) AWC 86
Judge: O.P Garg

Facts

Km. Angna Sinhal had successfully cleared the All India Entrance Examination 1996 for admission to an M.B.B.S.Course and was allotted and admitted in Kasturba Medical College, Manipal. She was suffering from Bronchial Asthama.

After completing the 1st Year of the said course, she applied for migration from Manipal Medical College to King George Medical College, Lucknow. Both the colleges had issued ‘No Objection Certificates’ for the requested shift.

The Medical Council of India (MCI), which is a statutory body, passed orders for the migration/transfer.

There were regulations, which had been framed with the previous sanction of the Central Government under which migration of the medical students took place. She applied for migration after completing all the necessary formalities under the compassionate ground criteria of illness of candidate causing disability.

The matter was placed before the Migration Sub-committee of MCI and the same was cancelled. Challenging this Angna filed the present Petition before the High Court of Allahabad

Arguments made on behalf of Angna

It was argued on behalf of Angna that she was suffering from Bronchial Asthama, a disease which, came within the term of the expression ‘disability’ and if she was shifted from Manipal to Lucknow, she might be able get rid of the serious ailment.

It was also told that many candidates with much weaker grounds than that of Agna had migrated. She was undergoing treatment for the said disease but could not get any relief as the drugs had failed to produce the desired result and now the only course left was that she be shifted from Manipal to Lucknow.

Arguments made on behalf of the State

It was argued on behalf of the Council that Bronchial Asthma was not such a disease in which migration was necessary. It was also pointed out that that Bronchial Asthma was not perpetual and a continuous illness and, therefore, the decision taken by the council in rejecting Angana’s case for migration did not suffer from any infirmity.

Moreover, there was nothing on record to indicate that she had become disabled on account of Bronchial Asthma. It was also not indicated from any document that the disease was such, which was not curable at Manipal or that in case she was not shifted from Manipal, to Lucknow she would acquire a disability.

Observations of the Court

The Court held that migration of the students from one medical college to another was prefaced with a warning that migration ‘is not a right of student’. It was only in exceptional circumstances that a student might be allowed to migrate.

Illness of the student causing disability’ was one such ground. Further, it was held that the ailment of Angana was not of such a magnitude as would attract the exceptional ground.

It was a fact that the Council was an expert body. If they took a decision that her illness was not such as would cause disability, then their decision could not be disputed.

The petition was dismissed.

Cases Referred:

  • Javed Rasool Bhatt vs. State of Jammu and Kashmir, AIR 1984 SC 873
  • J.P.Kulsreshtha and other vs. Chancellor, Allahabad University, (1980) 3 SCR 902
  • Dr.M.C.Gupta vs. Arun Kumar, (1979) 2 SCC 339
  • Krishna Priya Ganguli vs. University of Lucknow and others, AIR 1984 sc 186
  • Maharashtra State Board vs. Paritosh Bhupesh Kumar Sheth, AIR 1984 SC 1545
  • University of Mysore vs. C.D.Govinda Rao, AIR 1984 SC 1545
  • Jawaharlal Nehru University Studies Union vs. J.N.University and others, AIR 1985 SC
  • Principal Patna College vs. K.S.Raman, AIR 1966 SC 707
  • Dr. Uma Kant vs. Bhika Lal Jain, (1992) 1 SCJ 45
  • Board of High School vs. Baleshwar Prasad, Air 1966 SC 875
  • State of Bihar vs. Dr. Asis Kumar Banerjee, (1975) 2 SCR 894
  • Suresh Koshy vs. University vs. S.K Ghosh, AIR 1954 sc 217
  • P.K.Ram Chandra lyer vs. Union of India, W.P No. 587 of 1975, decided on December 16, 1983
  • Dalpat Abasaheb vs. Dr. B.S .Mahajan (1990) 1 SCJ 571
  • Jagdish Sharan vs. Union of India, AIR 1980 SC 820
  • Neelima Mishra vs. Harinder Kaur Paintal, (1990) 2 SCC 746
  • State of Kerala vs. T.P.Rashna, AIR 1979 sc 765
  • Principal K.G Medical College vs. Vishnu Kumar Agarwal, AIR 1984 SC 221
  • Bhushan Uttam Kharey vs. Dean B.J.Medical College

Hasankhan Gulamhussainkhan Khanjeda vs. State of Gujarat

Filed Under: Article 5, 21, 39, 226 of the Constitution of India Persons with Disabilities Act 1995
Appellant: Hasankhan Gulamhussainkhan Khanjeda
Respondent: State of Gujarat
Citation: (2005)3GLR 2633
Court: In the High Court of Gujarat at Ahmedabad
Judge: K.M.Mehta

Facts

Hasankhan Gulamhussainkhan had short eye vision. He had successfully cleared his S.C.C & H.S.C examinations & was quite hopeful of getting admission in the P.T.C course. He filled the form for the same for the year 2004-05. Hasankhan had the requisite marks & he had also produced disability certificate along with the form.

The certificate stated that he had 30% visual disability. Hasankhan alleged that he was called before the Disability Scrutinizing Committee but without undertaking any further exercise, on seeing his disability certificate, he was told orally that he was not entitled to admission in the said course.

Dissatisfied with the decision, Hasankhan filed the present petition before the Court, which passed the interim orders that he would be examined by a Ophthalmic Surgeon. The surgeon carried out detailed examination & confirmed him to be 30% blind.

Arguments made on behalf of Hasankhan

It was argued on behalf of Hasankhan that he was 30% disabled. As per the rules of PTC a person disabled up to 75% would be entitled to admission in the said course and since Hasankhan was only 30% disabled, he should have given admission in the P.T.C course.

Further, it was argued that in the previous year a person with 20% disability had been already given admission. Hasankhan also relied upon the provisions of the Disabilities Act and various decisions of Supreme Court and other courts were cited in his support.

Arguments made on behalf of the State

It was argued on behalf of the government that the committee, being an expert body had opined that Hasankhan was not a disabled person, and that he had no right to claim admission in the PTC course and therefore the petition should be dismissed. Moreover, he had 30% disability, whereas rule provides that there must be 75% disability and therefore Hasankhan was not entitled to be admitted under the reserved category.

Observations of the Court

After considering all the rules, acts & international covenants, the Court was of the view that when Hasankhan was 30% disabled and the rules provided that the disability should be up to 75% then Hasankhan would be held to be a disabled person.

It was further held by the Court that the Persons with Disabilities Act laid responsibility on the society to make adjustments for disabled people so that they could overcome various practical, phychological and social hurdles created by their disability. Further, the Act placed disabled people at par with other citizens of India in respect of education, vocational training and employment (see quote).

Therefore, Hasankhan was to be given admission. As for the academic year 2004-05 very few months were left, and the Court held that it would be difficult for Hasankhan to complete with other students so directions were given to grant him admission in the PTC course for the academic year 2005-06.

For these reasons the Writ Petition was allowed

Sections Referred:

  • Article 5, 21, 39, 226 of the Constitution of India

Cases Referred:

  • C Javed Abidi vs. Union of India and Ors.AIR 1999 SC 512
  • Palak Kailashchandra Jain vs. Union of India and Ors.
  • Laghava Maheshbahi Jayshankar vs. State of Gujrat, Special Civil Application No. 1847 of 2004
  • Ramchandra Tandi and 30 Ors. vs. State of Orissa and Ors, AIR 1994 Orrisa 228
  • Francis Coralie Mullin vs. Union Territory of Delhi, AIR 1981 1981 SC 746

Quotes from the Judgement:

“It is said that justice is blind, but Judges are not blind to the plight of the people. They are not deaf and dumb. They can hear the unspoken words of misery of the deaf and dumb boys who need protection. Their hands are not paralyzed. If the Court fails to wipe out tears from the eyes of those who deserve it, it would be handicapped. (Para 4.9 B”)

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Khant Harish Chandra Amar Singh vs. Superintendent of Police

Filed Under: Persons with Disabilities Act
Appellant: Khant Harish Chandra Amar Singh
Respondent: Superintendent of Police
Citation: MANU/GJ/0300/2003
Court: In the High Court of Gujarat
Judge: J.N.Bhatt and K.A.Puj

Facts

Khant Harish Chandra Singh started working as an unarmed police constable in 1999 and during his service, he was asked to present himself before a Medical Board.

The Medical Board certified him colour blind, which was a disqualification rendering him unfit for the service of a police Constable. Further, based on a medical report issued by a Civil Surgeon, he was retired from service.

Harish filed a petition before the Single Judge of the High Court against the authority. His claim was rejected by the Single Judge. Against the said order he filed the present appeal.

Observations of the Court

After hearing the arguments on both sides and referring to a judgment by the Supreme Court, the Court realized a need for interference with the order of the Single Judge. The basic question that was raised by the Court was whether medically certified ‘colour blindness’ could be considered a disability rendering him unfit for the post of an unarmed constable? This question was answered in the negative by the AGP.

Since colour blindness did not disqualify Khant Harish Chandra from holding the post of police constable, the Court held that the view expressed by the Single Judge that the termination of service was in consonance with the terms of his appointment. Further, it was observed that whether a particular type of certificate by the Medical Board could be ground for termination of service or cancellation of the appointment order or not, would have to be decided upon the terms and conditions of service and the governing rules.

With the above observations, the Court directed the order of the Single Judge to be set aside and that Harish Chandra would be reinstated without back wages in the given circumstances. Further, the period from the date of termination till the date of reinstatement was to be treated as continuous service for all purposes including retirement benefits and fixation of his seniority and promotion. Accordingly, the application was allowed.

Cases Referred:

  • Union of India and Ors vs. Satyaprakash Vashistha 1994 SCC [L & S] 792 [II]

Bogga Mallesh and Anr vs. the Commissioner, Disabled Welfare Department & Ors

Filed Under: Articles 14, 21 & 226 of the Constitution of India Persons with Disabilities Act
Appellant: Bogga Mallesh and Anr
Respondent: The Commissioner, Disabled Welfare Department & Ors
Citation: Writ Petition no. 22440 of 2004 Decided on 14 /02/2005
Court: In the High Court of Hyderabad
Judges: K.C.Bhanu

Facts

This petition was filed, seeking orders to include dwarf people within the meaning of disability under the Persons with Disabilities Act. The Commissioner filed a counter affidavit stating that based on the report of the Superintendent of Osmania General Hospital, Hyderabad, it had submitted proposals to the Government for inclusion of dwarf persons in the category of orthopedic disability and to issue instruction to the District Medical Boards for issuance of Medical Certificates for the purpose of availing of benefits of the schemes of the Government, and that the Government order was awaited.

Observations of the Court

The Court held that it would not interfere in the matter since it was for the Government to decide whether to include dwarf people. Therefore, the Writ Petition was disposed off with a direction to the Government of Andhra Pradesh to take an appropriate decision regarding the inclusion of dwarf persons in the category of orthopaedically handicapped, within a period three months

Sections Referred:

  • Articles 14, 21 & 226 of the Constitution of India

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