The Legal Analyst ISSN: 2231-5594 Volume 1, 2011, pp.

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DISBAILTY AND INDIAN JUDICIARY: A LEGAL STUDY

Dilip Kumar Upadhyay*
Abstract: According to Census of 2001, in respect to the Persons with Disabilities, there are 22 millions disabled persons in India. India being the welfare state is under obligation to help downtrodden and the poor. Persons with Disabilities also need more attention and help from the State. Preamble o f the Indian Constitution guarantees Person with Disabilities the full range of civil, political, economic, cultural and social rights. In this regards India has also passed the Persons with disabilities (Equal Opportunities, protection of rights and full participation) Act, 1995 objective of this Act is a legal endorsement to the right of access for the PWD to education and vocational training, employment training, practices, travel on public transport and mobility scheme, barrier free environment and integrated living information and communication strategies. This Act pla ces responsibility on society to make adjustments for PWD so that they might overcome various practical psychological and social hurdles related by their disability. It seeks to establish a coherent and comprehensive frame work for the promotion of just an d fair polices and their effective implementation. The role of the Courts in particular field describes and analyses the judgment of Court in the chosen sector. Therefore number of judicial decision in the field of disability are too few to make a satisfactory evaluation and the manner in which legislation on disability have been drafted. Key Words: Judiciary, Disabled, India.

Introduction: There are millions disabled persons in India, several observations have revealed the fact that the situation of Persons with Disabilities are very pitiable. Census of 2001, in respect to the Persons with Disabilities shows that there are 22 millions disabled persons in India. Although actual number of Indians with temporary and permanent disability could be as high as 50 million. India being a welfare State has got the obligation to help downtrodden and the poor so it requires more attention and help from the State. Preamble of the Indian Constitution guarantees Person with Disabilities the full range of civil, political, economic, cultural and social rights and the Directive Principles of State Policy demands the state to protect the disabled, within the limits of its economic capacity. India is a signatory to the proclamation on the Full Participation and Equality of Persons with Disabilities in the Asian and the Pacific Region which was adopted at the meeting to launch the Asian and the Pacific Decade of Persons with Disabilities (1993-2002) convened by the Economic and Social Commiss ion for Asia and Pacific at Beijing on 1st December, 1992 to implement the proclamation, the Persons with Disabilities (Equal Opportunities, protection of Rights and Full participation) Act,1995 hereinafter called as disability Act.1 Aims of the Persons with Disabilities Act, 1995 The aim of the disabilities Act is a legal endorsement to the right of access for the disabled people to education and vocational training, employment training, practices, travel on public transport and mobility scheme, barrier free environment and integrated living information and communication strategies. This Disability Act places responsibility on society to make adjustments for disabled people so that they might overcome various practical psychological and social hurdles related by their disability. It seeks to establish a coherent and comprehensive frame work for the promotion of just and fair polices and their effective implementation. It creates formal procedures, which hasten the process of full and total; integration of the disabled in society. 2 The disability Act provide that the state shall ensure that every child with disability has access to free education in appropriate government till he attains the age of 18 years and promote setting of special
*Research Scholar, Law School, B anaras Hindu Uni versity Varanasi, INDIA.
1

It was passed in December 1995 and was published in the Gazette of India on M onday 1 st January 1996 after receiving assent form the President of India. It has come into force from 7 th February 1996. 2 A.K. Human Rights of the Disabled: World in slow M otion, vol.38 Issue14, 2004 Journal of Constitution and Parliamentary Studies 1-50at 21.

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schools for such children.3 The state is required also to frame scheme which shall make provision for transport facilities to such children to enable them to attend schools and for removal of architectural barriers form schools, colleges and other institution imparting vocational and professional training.4 Schemes are also required to be made to provide aids and appliances to disabled people and also to allot land to them on concessional rate for house setting up business etc.5 Besides, the disability Act also aims to define the responsibilities of the Central and State Government with regard to the services for disabled persons. The Act aims to ensure full life to disabled individual so as to enable him to make full contribution in accordance with his disability condition. Blindness, low vision, leprosy, hearing impairment, loco-motion disability, mental illness and mental retardation are seven disability conditions covered under the Act. The Act also provides for introduction of non- formal education, provision of aids and appliances and creation of adequate teacher training facilities to prepare teachers for special and integrated schools. 6 Another esteemed objective of the Act is to provide employment of Persons with Disabilities, and the Governments are obligated to identify posts that should be reserved for Persons with Disabilities and review the list at least once in three years, most importantly, it shall reserve minimum three percent of job for such persons suffering form (a) blindness or low vision (b) hearing impairment and (c) loco-motor disabilities or cerebral palsy. Further the Government is also obliged to require the employers to furnish necessary information about such posts to special employment exchange. Moreover, such vacancies which are not filled up due to non availability or may other sufficient reason, shall be carried forward to succeeding years and if the desiring candidates are not available in that year it may first be filled by inter change among the foresaid there categories, in the absence of persons in these categories, the post can be filled up with a persons other than disabled persons, relaxation upper age limit regulating training the employment, etc. similarly all the Government educational institutions are required to reserve not less than three percent seats for disabled persons. 7 Constitutional Protection for Persons with Disabilities and Views of Judiciary Judiciary has played a significant role in transforming and broadening concept of human rights and even in the absence of there being specific right to persons with disabilities in the chapter relating to Fundamental Rights in the Constitution, the bold interpretation has brought within its sweep of chapter IIIrd rights of disabled also, while interpreting Article 15, 16, and 21 of the Constitution as well as some of provisions contained in the Directive Principles of State Policy. The Courts by adopting pragmatic and holistic approach, have given useful shape to these rights. In fact, by its activist role it has made executive to function in various spheres by awaking them form slumber. 8 The role of Court comes into play subsequent to the enactment of legislation. Article 13 of Indian Constitution makes a state action invalid if it is in infringement of the Fundamental Rights. As process which has been further sharpened with the advent of public interest litigation. Actions in public interest have been filed when the ground level situation of a particular individual or groups is an infringement of the Fundamental Rights guaranteed under the Constitution. These actions have been field before the High Court or Supreme Court under Article 226 and 32 respectively for issuance of appropriate writ, Oder or Direction for remedying the derivation and upholding the right. Though not in large numbers action in public interest have been field to assert the rights of Persons with Disabilities. The response of the Judiciary to these actions has been sympathetic but not radical. 9 In The National Federation of the Blind

3 4

Section 26 of the Persons with Disabilities (Equal Opportunities Protection Rights and Full Participation) Act, 1995 Section, 30, Ibid 5 Sections, 42-43, Ibid 6 Supra note 1 7 Suresh V. Nadagouadar, Rights of Disabled Persons: An Overview of the Persons with Disability (Equal Opportunity, Protection of Rights and Full Participation) Act 1995, vol.27 2000 Indian Bar Review 173-180 at 177 8 Supra note 1, at177 9 Amita Dhanda, According Reality to Disability Rights: Role of the Judiciary in: S.K Verma and S.C. Srivastava (ed.), Rights of Persons with Disabilities (New Delhi: Indian law Insittute, 2002), at91-92

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case10 , the Supreme Court was activated so that the Union Public Service Commission may be directed to allow blind persons to compete in examinations for the Indian Administrative and Allied Services. The Court acceding to the petitioners request to write the examination in Braille script or with the help of a scribe, allowed the petition. In this execution of order, however, whist a scribe was permitted to the blind candidate, the facilities of taking the exam in Braille script was withdrawn as it would not be possible to distinguish the script of one persons from that of another 11 . In Javed Abidi v. Union of India 12 the Supreme Court keeping in view the objectives of the Act while agreeing that the economic capacity is relevant consideration while deciding the question as to whether all suffering from disability as defined under section 2(i) of the Act should be granted concession similar to those granted to the blind persons for traveling by air, held that court cannot ignore the true spirit and object with which the Act was enacted, i.e. to create barrier-free environment for persons with disabilities and to make special provision for the integration of persons with disabilities into the social mainstream, apart from the protection of rights, provision for medical care education training employment and rehabilitation which are some of the prime objective of the Act. Again bearing in mind the discomfort and harassment a person suffering from locomotor disability would face while traveling by train particularly to far off places, it issued a direction to Indian Airlines to grant concession to persons suffering from locomotor disability to extent of 80%, the same concession which the airlines are giving to those suffering from blindness. This is an important decision, because despite the plea that the economic condition of the Indian Airline was such that it was not feasible to grant any further concession to any other category of disabled persons, and that the Act itself postulates for providing facilities to the disabled persons within the limits of economic capacity the Court issued the above direction keep in view the broad objective of the Act.13 In National Federation of Blind UP Branch v. State of UP14 the question to be decided before Allahabad High Court was, whether the Lucknow Development Authority while giving preference for allotment of plots and houses to blind and other handicapped persons, should also accord concessions in the rates of the land? The Court referred to section 43 of the Persons with Disabilities Act, which provide for scheme for preferential allotment of land for certain purposes. The Court ordered the respondent not only to give preference in matter of allotment of land and house to handicapped persons, but also to provide concessional rate to handicapped persons. Access to Education: Enforcement by the Court In the era of 21st century, the right to education has been considered to be one of the most valuable rights. In such situation it is very important to give adequate attention upon education. Thus provisions relating to education are contained in chapter V of the Act. Section 26 of this Act enjoins upon authorities to ensure appropriate environment till the child attains the age of 18 years. It is also to endeavour to promote the integration of student with disability in the normal school. Alongside this statutory emphasis, there is a social fact that normal schools blatantly deny admission to persons with disabilities on the reasoning that lack of infrastructure and personnel to teach such children. These facilities would not be created in ordinary school unless they have student with disabilities. Acceptance of the above reasoning is thus a negation of statutory mandate and it is here that Courts have a crucial role to play. The Court possess the power to authoritatively direct schools and government to fulfill the mandate of the Act and insure that inclusive education is provided both in form and substance15 . The Supreme Court16 has laid down that the right to education is embedded within the right to life and personal liberty. A number of vulnerable groups are denied this right on facetious reason. It is only if such reasons not accepted as defence by the

10 11

AIR 1993 SC 1916 Supra note 8, at 92 12 AIR 1999 SC 512 13 Supra note 1, at23-24 14 AIR 2000 All 258 15 Supra note 1, at 27-28 16 K. P. Unnikrishanan v. Union of India (1993) 1 SCC 645

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judiciary when Persons with Disabilities assert their rights and the promise made under section 26 does becomes a reality. 17 In chapter VI of the Act, the title of which is employment starts at section 32 and ends at section 41. Section 39 provides All government educational institution receiving aid from government shall reserve not less than three percent seats for Persons with Disabilities. In Kumari Rekha Tyagi v. Vice Chancellor University of Delhi18 the Delhi High Court held that section 39 has no application for reservation seats in educational institution for Persons with Disabilities. The Court reasoned that since section 39 fell under Chapter VI dealing with employment, the word seats must have been used in place of the word post. Thus three percent of posts can be reserved for these categories in educational institution under section 39. In State Council of Educational Research and Training v. Ravi Dwivedi19 the High Court of Delhi held that when provisions of both the sections i.e. section 33 and 39,are read together it is established that educational institution shall have to provide for separate questions for different categories of the disabled. It is also held that sections 33 cannot be said to be exhaustive of all sub-categories within disabled and that extent is merely illustrative. Fact of this case in brief was that the respondent a hearing impaired candidate was denied marks. Respondent challenged to compartmentalization of the three percent quota for different categories separately. Employment and View of the Court The International Covenant on Economic Social and Cultural Rights guarantees the right of everyone to enjoyment of just and favorable condition of work, which ensures adequate remuneration also. 20 Under this Covenant everyone has the right to adequate standards of living for himself and his family, including the adequate food, clothing and housing. But various cases this right is not at all being respected so for as the disabled persons are concerned. The Chapter VI of Persons with Disabilities Act 1995 it imposes duty on government to identification and reservation of the post for Persons with Disabilities, and establishment of special employment exchange, employers were required to maintain records and the vacancies which are not filled up to be carried forward. Therefore the aim of this Act to provide employment right of Persons with Disabilities, which may be divided into two sub-heads, namely (A) Right of the Persons with Disabilities to secure employment and (B) Rights of person acquiring disablement during employment. (A)-Right of employment- The Disabilities Act 1995 confers special and preferential right on Persons with Disabilities in government employment and inter alia provide 3 percent reservation of vacancies for Persons with Disabilities, where 1% each is to be reserved for persons suffering from (1) blindness or low vision, (2) hearing impairment and (3) locomotors disability or cerebral palsy. As per section 33 if the vacancy cannot be filled up due to non-availability of suitable candidates with disability such vacancy shall be carried forward to the succeeding recruitment year. But reality has shown that these provisions are not affected because of the general misconception among non-disabled that Persons with Disabilities are not capable of doing any job properly. Therefore the role of court in trying to change the mindset of the people, and particularly, the employer is worth appreciating. In the High Court of Madras21 held that where a Persons with Disabilities has performed the endurance test successfully, he can be consider for promotion to the post of inspector of central excise and customs. Fact of this case was that, the petitioner joined the service as lower divisional clerk. Thereafter he was promoted as upper division clerk. Consequent to re-designation of the post he was holding the post of Tax assistant. The petitioner by virtue of his experience, made a representation for the post considered for promotion to the post of inspector of central excise and customs. However the respondent

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Supra note 1, p28 93(2001)DLT 813 19 AIR 2008 Delhi 97 20 Article 17 of International Covenant on Economic Social and Cultural Rights 21 J John Wincent v. The Commissioner of Central Excise, The Chief Commissioner of Excise (Cadre Controlling Authority), The Chairman, Central Board of Excise and Customs and the Registrar, Central Administrative Tribunal, (2006) 4M LJ 108

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did not consider the representation of the petitioner and he was informed that being a physically challenged person he would not be able to do the arduous job of inspector of central excise and customs. In Life Insurance of India v. Chief Commissioner for Disabilities22 the view taken by LIC was that a persons with 45% disabilities was incapable of performing his duties as peon. The Delhi High Court decided that the decision of the Chief Commissioner found no substance in it and accordingly directed LIC to employ the Persons with Disabilities. Other aspects which create problems for Persons with Disabilities in seeking employment may be following(1) The definition of disabilities does not provide for all kinds of disabilities. There are some types of disabilities that may be rendering Persons with Disabilities unable to undertake any job. But there are some other types of disabilities that ought to be brought within the definition, since persons suffering from disabilities could still perform certain kind of jobs. 23 (2) Under section 38 of the disability Act the government is required to identify jobs that could be performed by persons suffering from various kinds of disabilities. 24 Cases have been filed where questions have arisen as to whether a persons suffering from particular job. For instance a Division Bench of Delhi High Court in it judgment held that handicapped persons can be appointed as physical education teacher once they have passed qualifying examination and undergone the requisite training and the government cannot by subsequent clarification take away that right which has already been accrued to them.25 In Sanjay Kumar Jha v. AIIMS and Anr. 26 Delhi High Court has pointed out that the appropriate government or local authorities have not framed the requisite scheme in favour of Persons with Disabilities for preferential allotment etc. though it is the duty cast upon them by the legislatures under sections 43 of the Disability Act. The Court has given direction to make appropriate scheme under section 43 of the Act within a period of six months. In another case Syed Bashir-ud-din Qadri v. Nazir Ahmed Shah and Others27 Jammu and Kashmir Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1998, ss. 22 and 27 - Employment of person with disability - State of Jammu and Kashmir launched a scheme known as "Rehbar-e-Taleem" - Under the Scheme, Committee was constituted to select persons to be appointed as "Rehbar-e-Taleem" (Teaching guide) - Appellant applied for the same and was placed at the first position in the list published of proposed candidates for appointment as Rehbar-e-Taleem - Appellant was suffering from Cerebral Palsy which affected his speech - Appellant filed writ petition praying for a direction for issuance of appointment letter in his favour in terms of the list issued by them - HC directed that the respondent should consider the possibility of absorbing the appellant under the quota of handicapped persons - Pursuant thereto, a committee was constituted which on an overall assessment viewed that the appellant be given appointment as Rehbar-e-Taleem - Appointment of appellant was challenged before HC - HC quashed the appellant's appointment - Aggrieved by the order of the Single Judge resulting in the passing of the order of his disengagement from the post of Rehbar-e-Taleem, the appellant filed present special leave petition - Held, object of the Act is to provide equal opportunities, care, protection, maintenance, welfare, training and rehabilitation to persons with disabilities - In the present case, there was nothing on record to show that the appellant was not performing his duties as Rehbar-e-Taleem efficiently and with dedication - On the other hand, his performance as a teacher was reflected in the exceptionally good results that he achieved in his discipline in the classes taught by him Furthermore, Committee constituted to assess his performance as a teacher notwithstanding his disability had formed a favourable impression about him. Supreme court of India held that approach of the local
22 23

2002, 101 DLT 434 Supra note 1,at32 24 Ibid, at33 25 Govt. of NCT of Delhi v. Bharat Lal M eena and Surinder Singh M ANU/DE/ 1431/2002 26 MANU/DE/0468/2008 27 2010 (3) SCJ 442

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authorities, as well as the HC, was not in consonance with the objects of the Act and scheme of the State Government to fill up a certain percentage of vacancies with disabled candidates, and was too pedantic and rigid - Impugned order of the HC and that of the Chief Education Officer disengaging the appellant from functioning as Rehbar-e-Taleem. (B)-Persons Acquiring Disabilities during Employment In so far as acquiring disability during employment is concerned, the rights of such disabled persons are taken care of by enacting a provision like section 47 of the Disability Act. Sections 47 mandate its clear terms that no establishment shall dispense with or reduce in rank the employee who acquires that disabilities during the service. 28 In Narendra kumar Chandla v. State of Haryana and Other 29 a SLP was filed under Article 136 in the Supreme Court of India. Chandla was aggrieved on account of being reduced in rank on acquiring disability during service. Though the Supreme Court but it orders appointed him as lower divisional clerk this was lower in rank but protected his salary in pay scale of Rs.14002300.However he was deprived of his right to promotion to the next higher grade forever. No doubt to great degree the Supreme Court removed the injustice and protected his livelihood but it did not lay down the law that prohibition against discrimination in the matter of career enhancement of acquiring disability during service. In order to prevent discrimination on grounds of disability extra legal safeguards have now been provided.30 As section 47 of the Act says that no establishment shall dispense with or reduce in rank, on employee who acquires a disability during his service. Provided that if any employee after acquiring disability is not suitable for the post he was holding could be shifted to some other post with the same pay scale and service benefit. Provided further that if it is not possible to adjust the employee against any post, he may be left on super-numerary post until a suitable post is available or he attains the age of superannuation whichever is earlier. No promotion shall be denied to a person merely on ground of disability. In Kunal Singh v. Union of India31 the appellant was recruited as a constable in the Special Service Bureau. When he was on duty, he suffered an injury in his left leg. The medical aid given to him did not help. Ultimately, his left leg was amputated on account of gangrene which had developed from the injury. He was invalidated from service by the respondents on the basis of the report of the Medical Board, Kullu under which he was declared permanently incapacitated for further service as per order passed by the commandant, Group center, SSB Shamshi (Kullu). He filed a writ petition in the High Court challenging the validity and correctness of the said order on the ground that it was arbitrary and that he could have been assigned with alternative duty which he could discharge keeping in view the extent of his disability and having due regard to 17 years of his unblemished service. The writ petition was dismissed the High Court holding that he had been permanently invalidated on the basis of the medical opinion and as such there was no scope for his to continue any further in service of any kind in the SSB. Hence, the appeal was filed assailing the impugned order before the Supreme Court. Supreme Court held that the appellant has acquired disability during his service and if found not suitable for the post he was holding, he could be shifted to some other post with same pay-scale and service and service benefits, if it was not possible to adjust him against any post, he could be kept on supernumerary post until a suitable post was available or he attains the age of superannuation, whichever is earlier. It appears no such efforts were made by the respondents. They have proceeded to hold that he was permanently incapacitated to continue in service without considering the effect of other provisions of section 47 of the Act. In another case of Delhi High Court32 where the petitioner was appointed as a conductor in Delhi transport corporation. On one fateful day he met with an accident at his residence and got burns on his face and eyes. Fifteen days later he was certified to have fully recovered. The petitioner thereafter reported on duty. There he was asked to appear before the medical board. The medical board declared the petitioner unfit for the post of conductor. The petitioner was then served with an order by which he was retired prematurely from the service of the DTC. The petitioner is seeking relief under
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Supra note 1 at 41 AIR 1996 SC 419 30 Ibid, at 42 31 AIR 2003 SC 1623 32 Shrei Din Dayal v. Delhi Transport Corporation 131 (2006) DLT 641

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section 47 of the Act filed a petition in the Delhi High Court. The Court gave order that the DTC should reinstate the petitioner either on the post of a conductor or some suitable post with the same pay-scale and service benefits. In case he cannot be adjusted against any other post he attains the age of superannuation, whichever is earlier. The Court further held that he will be deemed to have continued in service without any break and will be entitled to pay and allowances and other service benefits from the date he was retired by the impugned order till the date of this judgment. Any amount withdrawn pursuant to the impugned order will be adjusted against his salary due till date and subsequent salaries. Denial of a disabled persons rights would not only be unjust and unfair to him and his families but would also create larger and graver problems for the society at large. What the law permits to them is no charity or largess hut their right as equal citizens of the country. Thus in the Bhagwan Das and Anothers v. Punjab State Electricity Board33 the appellant became blind while in service and remained absent from duty for three years without any sanctioned leave. Then he made representation to the Board for retirement and requested to appoint his wife in his place he was then relived from the service. He filed an affidavit before the Board and pleaded that he had no knowledge of rule of the Electricity Board and represented for retirement mistakenly. Here the High Court dismissed the appeal instituted against the decision of the board. Upon this the appellant filed appeal before the Supreme Court. The Board contended before the Supreme Court that he himself wanted to retire from service therefore section 47 of the Act was not applicable. The Supreme Court held that in the letter for retirement the appellant requested to be retired but at the same time requested that his wife should be given a suitable job. Hence the latter is not a voluntary offer for retirement. Rather it was the duty of the superior officers to explain to him the correct legal position and to tell him about his legal rights. The conduct of the concerned officers was depreciable as it has resulted into denial of disabled persons rights which would not only be unjust and unfair to them and their families but would create larger and graver problems for the society at large. Hence the termination was held bad and illegal and he was held entitled to all service benefits. In Union of India v. Devendra Kumar Pant and Others34 Respondent was appointed as a Lab Assistant in the Research Designs and Standards Organisation (RDSO), Ministry of Railways and was subsequently promoted as Junior Research Assistant, and Senior Research Assistant, he further was selected for the next higher post with the condition that his promotion w ill be effective from the date of submission of fit certificate in B1 medical category. Earlier applicable medical category was B2 - Writ petition filed before Allahabad High Court, section 47(2) of the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short 'the Act');with contention that B1 medical category was of a higher standard than B2, as it required colour perception in addition to the requirements prescribed for B2 category, that lack of colour perception or reduced colour perception was a 'disability' and that as he was otherwise qualified; having regard to section 47(2), promotion could not be denied to him on the ground of any disability which existed with reference to B1 medical standard - High court accepted the petition - Whether refusal by the appellant to give effect to the promotion of respondent unless be obtains fit certificate in B1 medical category, violates section 47(2) of the Act and held, no object and scheme of Act deliberated upon; provisions perused, and contentions heard decided cases on the subject referred disability under Act means inter alia, blindness, low vision, lack of colour perception, Court observed, is neither blindness nor low vision and is therefore apparently not a disability under the Act Court said that it is doubtful whether a person lacking colour perception can claim to be person entitled to any benefit under the Act, Court proceeded with assumption that respondent is a Person with Disability as per section 47(2) a person who is otherwise eligible for promotion shall not be denied promotion merely or only on the ground that he suffers from a disability, thus it bars disability per se being made a disqualification for promotion, but if promotion is denied on the ground that it will affect the safety, security and performance, then it is not denial of promotion merely on the ground of his disability, but is denial of promotion by reason of the disability plus something more, that is adverse effect of the disability upon the employee's performance of the higher duties or functions attached to the
33 34

AIR 2008 SC990 2010(1) SCJ 455

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promotional post - Higher standard fixed in instant case for the promotion post was being fixed in the interest of the public safety, as also interest of the employee concerned, co-employees and administration, the respondent cannot, by relying upon section 47(2) of Act, avoid subjecting himself to medical examination for ascertainment of B1 medical category fitness - Prescription of minimum medical standard for promotion should be considered as such, and should not be viewed as denial of a promotional opportunity to a Person with Disability. Case comes before Supreme Court. The Supreme Court observed that section 47(2) only provides that a person who is otherwise eligible for promotion shall not be denied promotion merely on the ground that he suffers from disability. The use of the words 'merely on the ground' shows that the section does not provide that if the disability comes in the way of performing the higher duties and functions associated with the promotional post, promotion shall not be denied. In other words promotion shall not be denied to a person on the ground of his disability only if the disability does not affect his capacity to discharge the higher functions of a promotional post Similarly the Madras High Court in Sheriff E. v. Tamilnadu State Express Transport Corporation35 decided that the petitioner was entitled to the benefits of the provisions contained in section 47 of the Act, the same should have been extended by the TNSETC but instead it has entered into a settlement with the petitioner and provided the job of helper, which post carries a lesser pay scale, which in the considered view of the Court is against the beneficial provisions contained in section 47 of the Act. Therefore, the Court took the view that the impugned order is liable to be quashed and accordingly quashed and allowed the petition. The facts of this case in brief was that the petitioner who was working as a conductor with the TNSETC lost his right leg in an accident which occurred while he was on duty. On account of the said accident, the petitioner was no more in a position to perform his duty as conductor. However, he later joined duty after getting a fitness certificate to resume work. But, he was not able to perform his job as conductor. Hence, he was given lighter work as Reservation Counter Clerk/ Time Keeper, as there was no need for the petitioner to stand or walk to discharge the duties, and the was working as Reservation Counter Clerk/ time keeper satisfactorily. While so, the petitioner was abruptly denied employment six years later from date of accident, by an oral order of the branch Manager of the Marthandam Depot. He was informed that he would not be given the lighter work which he was doing from last six year. Hence a representation was made by the petitioner to the managing director of the Corporation, requesting them to continue to give him lighter work. The petitioner was directed to appear before the Medical Board and the Board found that the petitioner was not fit to discharge his duties as conductor. On the basis of the report of the Medical Board, a show cause notice was sent to the petitioner to show cause as to why he should not be terminated from service. In reply he again requested for providing him lighter work as was provided to him earlier. But not accepting the explanation and representation of the petitioner, the MD of Corporation passed an order terminating his service. Easy and Convenient Access to All Places for Persons with Disabilities In Lok Sabha while answering a question on 10th August,1994, the Minister of State for Urban Development admitted that even Government building are not designed to facilitate access for Persons with Disabilities. Voicing concern to bring disabled people into the mainstreams of society and nation by official and non-official agencies has become a trend of the day. However, what is being preached is not practiced. One of the most essential prerequisites for brining in to ma instream the disabled person is to provide them accessibility to public places/building and an accommodating transport system. Difficult to enter offices, railway/bus stations, banks universities/colleges, schools, courts, entrainment and sports likes theaters, amusement park, restaurants and mela or trade fare etc. hampers this accessibility aspect.36 Therefore the strategy adopted in the Disability Act for the realization of positive right is the mandate to the government to prepare scheme through which accessibility can be secured. Thus, under section 30 of the Act, appropriate government have been directed to prepare a comprehensive educational scheme which may provide, inter alia, for transport facilities, supply of books, uniforms, grant of scholarship etc.
35 36

Sheriff E. v. Tamilnadu State Express Transport Corporation, division-1 (2008) II LLJ 565 M ad Ateeque A. Khan, The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act,1995:A Plea for Early Enforcement in India at 114-123, in Tarlok Singh (ed.), Vol. 17 No. 1, 1998, IASSI Quarterly at119

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Under section 38, duty has been casted upon appropriate government and local authorities to formulate scheme for ensuring equal employment opportunities and under section 42, schemes have to be made to provide aids and appliance to persons with disabilities. Insofar as the realization of these vital rights can be secured only if the proposed schemes are formulated, while the absence of such schemes would needlessly create ground for Courts intervention. If the Courts have left the choice of making such scheme to the discretion of appropriate government and local authorities the one of the most potent rights guaranteed by the statute would be rendered nugatory. 37 Only through the Act it is not possible to fulfill need of Persons with Disabilities, or in other words, the loud talk of bringing the Persons with Disabilities into the mainstream of the nation is restricted to papers and platforms, alone it needs hardly be stressed that the state and society both have to collaborate in order to meet and fulfill their obligation towards the Persons with Disabilities so as to enable them to join the mainstream as far as possible in all possible way of human life. Concluding observation: The role of the Courts in particular field describes and analyses the judgment of Court in the chosen sector. Therefore number of judicial decision in the field of disability are too few to make a satisfactory evaluation and the manner in which legislation on disability have been drafted. The legislation has been inspirationally constructed but they do not lay down that would happen if these promises are not fulfilled. To extent to which the Court fulfills this expectation greatly depends on the kind of choices that individual judge make. In the disabilities Act there are some demerits, one of the demerits in the exclusive definition of the word disability and the definition of the word Persons with Disability the latter is defined as a person suffering from not less than 40% of any disability as certified by medical authority. Disability is a state of persons feeling enable to do something, which other can. There is no relevance to percent of disability. A person may have only 25% disability, but if he is not at all in a position to function as normal human being, why should he be denied the rights available to a Persons with Disability of 40%. So it is better to leave it to the medical authority to decide as which percent of disability will really make his disabled. So, first the definition of the words, Persons with Disability needs to be re-defined. Secondly it does not confer any special education scheme. Thirdly the justification for not implementing the provisions of the Act on the ground of economic constraints etc. should be resorted to very sparingly. Another problem is regarding the enforcement machinery, i.e. there is Chief Commissioner in central level, whose main functions are to look into the complaints with respect to matters relating to deprivation of the rights of Persons with Disabilities, non-implementation of laws, rules etc. for the welfare and protection of rights for Person with Disabilities. But it is felt that the Chief Commissioner and other Commissioners are not needed. The protection of rights for Persons with Disabilities is essentially a matter of protection of Human Rights and when there is already machinery called the National Human Rights Commission, whose major activities are to look into complaints of violation of human rights and non-implementation of laws, rules etc. relation to the protection of Human Rights of Persons with Disability can be more useful if all the state instrumentalities are made sensitive to the cause of such persons.

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Supra note 1, at45