Legal Procedures to be Followed

Rajesh Kumar vs. Hindustan Aeronautics Ltd and Ors

Filed Under: Sections 2, 32, 33, 62 and 63, Persons with Disabilities Act, 1995
Appellant: Rajesh Kumar
Respondent: Hindustan Aeronautics Ltd and Ors.
Citation: MANU/UP/0168/2002; Decided on 01.02.2002(unreported)
Court: In the High Court of Allahabad
Judges: M. Katju and S.K. Singh

This is a Writ Petition filed by Rajesh Kumar who was not given employment in a Government Company despite being entitled to the provisions of the Persons with Disabilities Act.

Facts

Rajesh Kumar belonged to the Scheduled Caste category and was a physically disabled person, suffering from polio. He obtained a Degree in Bachelors of Technology in Electronic Engineering. He successfully completed his apprenticeship in the Hindustan Aeronautics Limited, Kanpur division.

In response to an advertisement in a daily newspaper inviting applications from engineers for the appointment of Executive Trainees, Rajesh applied for the said post. He cleared the written exam that was held for the post and thereafter appeared for the interview. However, his name was not included in the list of selected candidates who were finally appointed.

Rajesh then filed a complaint with the Commissioner and filed this Writ Petition on the ground that he was the only candidate belonging to the physically handicapped category who had cleared the written exam and therefore he should have been selected.

Arguments made on behalf of Rajesh

Rajesh's lawyer contended that Hindustan Aeronautics Ltd had failed to accord any consideration to the fact that he was a physically handicapped person and there existed reservation in his favor in terms of Section 33 of the Persons with Disabilities Act.

It was also submitted that after the advertisement, to which Rajesh had responded, Hindustan Aeronautics Ltd had given another advertisement in the newspaper, that invited fresh applications from physically handicapped individuals for mechanical and engineering disciplines alone.

It was contended that this advertisement had been made with a view to bar Rajesh from consideration and appointment since he had applied for a different branch of engineering.

Arguments made on behalf of Hindustan Aeronautics Ltd

The lawyer on behalf of Hindustan Aeronautics Ltd. contended that according to the provisions of Section 33 of the Act it was the task of the 'Appropriate Government'(Central or State) to identify posts that could be reserved for persons with disabilities in an establishment.

According to the lawyer, the trade of electronic group 'B' had not been identified by the Appropriate Government as a post in which reservation for physically handicapped could be given. Therefore, it was argued that Rajesh could not be considered under the physically handicapped quota.

The lawyer on behalf of Hindustan Aeronautics Ltd also argued that this company was a defense establishment, which required excellence and perfection in the job as it had the safety of the nation at stake. It was stated that a person selected for the job would have to be fit enough to get into the aircraft and cockpit and perform many other tasks that could not be done by a person suffering from physical disability.

Lastly, it was argued that under the provisions of Section 62 of the Act, the Commissioner was entitled to look into grievances for the non-implementation of the Act. According to the lawyer, Rajesh had already approached the Commissioner and filed a complaint. It was submitted that he was already pursuing an alternative remedy under the Act.

Observations of the Court

The court analyzed the arguments put forth by both the parties and referred to Sections 33, 61 and 2 (a) of the Act. According to the Court since Rajesh had already filed a complaint with the Commissioner who had full authority to take a decision regarding this matter, the Writ Petition would have to be disposed of with the direction that appropriate decision be taken by the Commissioner.

It was also stated that both the parties would be at a liberty to take whatever steps permissible under law, after the Commisioner had made his decision.

Sections Referred:

  • Section 32, 33, 61, 62, 63 and 2(a) of the Persons with Disabilities Act, 1995

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The Managing Director, Tamil Nadu State Transport Corporation (Madurai Division IV) Ltd. Vs. P. Ellappan

Filed Under::The Persons with Disabilities Act, 1995,
Article 32 & 226 of the Constitution of India
Appellant: The Managing Director, Tamil Nadu State Transport Corporation (Madurai Division IV) Ltd
Respondent: P. Ellappan
Citation: (2005) IILLJ300Mad
Court: In the High Court of Madras
Judges: Markandey Katju and D. Murugesan

Facts

P. Ellappan was employed as a driver with the Tamil Nadu State Transport Corporation (referred to as Corporation). He had been in service for ten years when he met with an accident and sustained multiple injuries. The conductor and a few passengers were also injured in the same accident.

Ellappan was admitted in the hospital for 68 days and was discharged without being completely cured. His main grievance was that the transport corporation did not take any steps to help him in medical treatment nor was he given a medical allowance. He had to bare all costs of treatment himself.

The Corporation gave him an alternate job and posted him as a cashier at the Vasundhra Branch. However, he was then compelled to join back as a driver. When he pleaded inability to drive the vehicle he had been driving before the accident, it was alleged, that instead of allowing him to continue his services as a cashier, the Corporation dismissed him.

However, he was later appointed afresh as a helper. Ellappan made several representations to consider his past service for seniority and other service benefits like pay protection but all his efforts went in vein. He filed the current Writ Petition against the order of his dismissal.

Arguments made on behalf of the Corporation

  • Firstly, it was argued on behalf of the Corporation that Ellappan was given medical treatment for a period of 68 days as an inpatient. It was claimed that he had been granted leave with wages for the entire period.

  • Secondly, after the accident he was referred to a Medical Board, which stated in its report that Ellappan was not fit to drive heavy vehicles any more. Therefore, the Corporation issued a show cause notice to him directing him to state why he should not be discharged from service on medical grounds. Ellappan submitted his reply requesting the Corporation to give him alternate employment with continuity of service. The Corporation however, discharged him from service on medical grounds and then offered him alternative employment in accordance with the Government Order (GO), which states that all the workers in the Corporation, who are declared medically unfit for continuance in service in the post they are holding, shall be discharged on medical grounds and their service benefits shall be settled. Further, as per the GO, the worker should be subsequently provided with alternative employment in a post like helper, depending upon his qualification, experience, and suitability for the new post. The GO additionally states that such a worker should be appointed as a fresh entrant only in the scale of pay or consolidated pay, admissible to the new post, and his service would be terminated on the date on which he attains superannuation. Hence, Ellappan was appointed as helper and had also worked at that post for six years without raising any protest. It was thus alleged that after accepting the alternate employment and having worked for so many years, his claim to the benefits of the Persons with Disabilities Act was unacceptable.

Observation of the court

The court observed that Ellapan had accepted the alternative employment and joined duty as helper on 8.9.1993. His salary as a helper was Rs.500/- short of his pay as a driver. He had also worked on this alternative job for six years without raising any protest whatsoever. However, in the year 1999, he filed a Writ Petition seeking parity in pay and for consideration of his representation.

In the opinion of the Court, the Writ Petition should not have been entertained at all, as it was filed belatedly and because of the undue delay on the part of the petitioner in filing the Writ Petition, he would not be entitled to the discretionary relief under Article 226 of the Constitution of India.

The Court was of the opinion that Ellappan could not get any benefit from the Persons with Disabilities Act as he had already availed the benefit of the GO and had been given alternative employment. Also his termination of service on medical grounds and subsequent reemployment had all occurred before the enactment of the aforesaid Act of 1995.

Held: The Writ Petition was therefore dismissed.

Sections Referred:

  • Article 32 & 226 of the Constitution of India.

Case Referred:

  • State of Maharastra vs. Digambar, AIR 1995 SC 1991;
  • Municipal Council, Ahmednagar vs. Shah Hyder Beig, AIR 2000 SC 671;
  • Gian Singh Mann vs. P & H High Court, AIR 1980 SC 1894;
  • J.N.Maltiar vs. State of Bihar, AIR 1973 SC 1343;
  • Rajalakshmiah vs. State of Mysore, AIR 1967 SC 993;
  • Srinivasa Rao vs. State of Karnataka, (1996) 9 SCC 616;
  • S.A. Rasheed vs. Director of Mines and Geology, AIR 1995 SC 1739;
  • The Management of D.A.T.C. Limited vs. The Presiding Officer, (2002) 12 M.L.J 61;
  • Narendra Kumar Chandla vs. State of Harayana (AIR 1995 SC 519;

Pushpa Kumari and Ors vs. GAIL (India) and Anr

Filed Under::Persons with Disabilities Act, 1995
Appellants: Pushpa Kumari and Orsbr> Respondent: GAIL (India) and Anr
Citation: 118(2005) DLT192, 2005 (81) DRJ181, 2005(3) SLJ 352 (Delhi)
Court: In the High Court of Delhi
Judge: B.A Khan and Manju Goel

Facts

Pushpa Kumari and others were visually handicapped persons. They were selected for on-job training with Gas Authority of India Limited (GAIL), which was later extended by six months.

They were then asked to appear for a computer proficiency test and interview and were engaged as Assistant (Training) (S-3 Level) for one year on a consolidated stipend of Rs.6000/- Per month by an order passed by GAIL in October 2001, subject to various terms and conditions, one of which stipulated that the period of training shall not be reckoned as service with GAIL.

They were again called for a computer proficiency test and interview in September 2002. They claim that they appeared in this test and interview but its result was not declared.

Later they received a letter dated 30.1.2004 from GAIL, informing them that their training period had ended on 31.1.2004. Aggrieved, they filed Writ Petition seeking quashing of this letter and a direction to GAIL to regularize their services from 9.10.2001 and to pay them regular pay scales attached to the post of Assistant ( Training ) ( S-3 Level ).

However, GAIL objected on the grounds that Pushpa Kumari and Others were selected in job training under their scheme for job-training to disabled people. Their training period got extended for 4 years due to their failure to reach the desired level.

Further, it was stated that they were under the mandate of the Persons with Disabilities Act which would not permit them to appoint a disabled person unless they are from the Special Employment exchange.

The Court had held that since GAIL had vacancies for employment for visually impaired persons and that Pushpa Kumari and Others would be eligible to apply for the jobs and that the GAIL would issue a public advertisement inviting applications from visually impaired persons and include them in the selection process irrespective of whether the applications are sponsored by the Special Employment Exchange or not.

Aggrieved by such order, Pushpa Kumari and the others filed the present appeal.

Observations of the Court

  • Firstly, it was argued on behalf of the Corporation that Ellappan was given medical treatment for a period of 68 days as an inpatient. It was claimed that he had been granted leave with wages for the entire period.

  • Secondly, after the accident he was referred to a Medical Board, which stated in its report that Ellappan was not fit to drive heavy vehicles any more. Therefore, the Corporation issued a show cause notice to him directing him to state why he should not be discharged from service on medical grounds. Ellappan submitted his reply requesting the Corporation to give him alternate employment with continuity of service. The Corporation however, discharged him from service on medical grounds and then offered him alternative employment in accordance with the Government Order (GO), which states that all the workers in the Corporation, who are declared medically unfit for continuance in service in the post they are holding, shall be discharged on medical grounds and their service benefits shall be settled. Further, as per the GO, the worker should be subsequently provided with alternative employment in a post like helper, depending upon his qualification, experience, and suitability for the new post. The GO additionally states that such a worker should be appointed as a fresh entrant only in the scale of pay or consolidated pay, admissible to the new post, and his service would be terminated on the date on which he attains superannuation. Hence, Ellappan was appointed as helper and had also worked at that post for six years without raising any protest. It was thus alleged that after accepting the alternate employment and having worked for so many years, his claim to the benefits of the Persons with Disabilities Act was unacceptable.

Observation of the court

The Court opined that the earlier Court had not dealt with the case as set up by Pushpa Kumari and Others but it was of the opinion that their prayer cannot be allowed.

Further it was observed that Pushpa and others were only engaged as Assistant (Training) (S-3 level) subject to the condition, that their training/engagement should not be reckoned as a service with GAIL for consideration of various benefits like seniority, etc. This engagement was only for one year and that too on a consolidated stipend of Rs.6000/- per month.

Therefore, it could not be treated to be an employment with GAIL. As regards their claim of regularization, the Court held that a mere engagement on a post and that too on a consolidated stipend for a limited period would not entitle them to any regularization of such engagement if the post was otherwise to be filled up by a particular mode of recruitment under the relevant rules.

This obviated the necessity of examining whether the provisions of the Persons with Disabilities Act were applicable to this case at all. Even if these were not held applicable, still their claim for appointment against the post of Assistant (Training) (S -3 level) was not sustainable as per the terms and conditions of their engagement.

The appeal was accordingly dismissed.

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