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