Smt. Omvati Kalshan vs Delhi Development Authority on 19 October, 2005

Equivalent citations: 125 (2005) DLT 57, (2006) 142 PLR 5, 2006 (2) SLJ 495 Delhi

Author: S R Bhat

Bench: S R Bhat

JUDGMENT

 

S. Ravindra Bhat, J.

 

The petitioner, an official working with the first respondent as Receptionist, is aggrieved by the decision dated 09.07.2004 refusing promotion to her. She seeks an appropriate mandatory order and also direction that she be granted conveyance allowance. The petitioner was working with the first respondent (DDA) when she started suffering from deteriorating eye- sight, sometime in the year 1985. She was then in the cadre of Private Secretary, holding the post of Welfare Officer in the grade of Rs. 650-200 (pre-revised). When the petitioner reported for her duties on 29.07.1985, the DDA insisted on her examination and production of a fitness certificate. The Dr. Rajendra Prasad Center of Ophthalmic Sciences, by communication dated 21.11.1985, certified that though the petitioner was visually impaired, she could perform duties of Welfare Officer, but she would encounter difficulty in deskwork. The DDA, after considering the petitioner's case, decided to utilize her services in a lower grade/ post, of Reception Officer, in the pre-revised of Rs. 550-900. It is alleged that the petitioner was left with no choice but to accept that position, since she was told in no uncertain terms that her refusal would result in being retired on medical grounds. It is alleged that the petitioner represented against the move to shift her to a lower post of Reception Officer but that met with no success. Subsequently, sometime in August 1986, she joined the post of Receptionist, in a lower pay scale. The petitioner kept representing and Government of India required the DDA, by its letter, dated 20.08.1986, to consider granting the relief. On 21.01.1987, the DDA sought for copies of relevant instructions of the Government. Thereafter, the DDA kept writing letters. On 21.09.1999, the DDA wrote to the Deputy Chief Commissioner for disabilities, Government of India indicating that her claim for higher pay scale was under active consideration. Subsequently, the petitioner was placed in the pay scale of Rs. 6500-10500 w.e.f. 01.01.1996, by order, dated 12.10.99 that pay scale was in respect of the post of Personal Assistant.

 

By the impugned order dated 09.07.04, the DDA turned down the petitioner's request for promotion to the next higher cadre and protection of seniority in the grade of Personal Secretary. The petitioner has questioned the decision of the DDA as arbary; violative of Article 14 of the Constitution of India and also being contrary to Section 47 of thePersons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation ) Act 1995. The respondents, in their counter affidavit, have taken the stand that the visual impairmentsuffered by the petitioner led to her being offered the post of Reception Officer on humanitarian consideration. The alternative would have been to superannuate her on invalid pension. It is alleged that the petitioner's seniority has been maintained separately as Reception Officer, as distinct from the P.A cadre, therefore, she is not entitled to promotion to the post of Deputy Director for which only those working actually as PS/PA, are eligible. It is also averred that the petitioner is not entitled to conveyance allowance and that it is admissible only to persons who are blind or are orthopaedically impaired with minimum of 40% disability of both upper and lower extremity deformities. The respondents have also alleged that the petitioner cannot claim the benefit of the Persons with Disabilities (Equal Opportunities, Protecting of Rights and Full Participation) Act 1995 since her disability occurred prior to its enactment and enforcement. It is submitted that the petitioner was found unfit for the post of Welfare Officer and posted as Reception Officer on account of her inability to work where paper work was involved. Her visual impairment is 75% as reported on 24.09.2001 by the Additional Professor of Ophthalmology, Dr. Rajendra Prasad Center for Ophthalmic Sciences. Learned counsel for the petitioner, Mr. J.P. Sengh, submitted that the respondents were under an obligation to extend fair treatment to the petitioner. This obligation stems out of Article 14 of the Constitution. He placed reliance upon the judgment of the Supreme Court reported asNarender Kumar Chandla v. State of Haryana, . In that judgment, the Supreme Court held that if an employee of a state or public organization is been afflicted with disability due to which he is unable to perform duties in relation to the post held by him, the employer is under an obligation to adjust him in a suitable post. The Court had directed the petitioner to be adjusted against the higher post by relaxing the requirements of typing test. This was also done in addition to protecting his pay scale. 10. Mr. Sengh also placed reliance upon the judgment in Vijender Singh v. DTC, 2003 (105) DLT 261; DTC v. Harpal Singh, 2003 (105) DLT 113 and Dilbagh Singh v. DTC, 2005 (7) AD (Delhi) 599 to say that the provisions of 1995 Act have been construed as a beneficial legislation and would have to be applied as and when a grievance of violation of Section 47 of the Act is made out. Learned counsel submitted that the treatment meted out to the petitioner by requiring her to accept the post with lower pay scale and permanently blight all her prospects for promotion, cannot foreclose her claim to be treated as part of the original adre, in which she was holding the post, for purposes of promotion and other benefits. He relied upon the order of the DDA itself by which the petitioner was given pay protection w.e.f. 01.01.96. In the absence of any rationale to deny promotion, the treatment of the petitioner is one belonging to a separate cadre where there is no other employee, is arbitrary. Learned counsel also submitted that denial of conveyance allowance amounts to discrimination to the petitioner since it creates hurdles in the normal performance of her duties.

 

Mr. B.P. Aggarwal, learned counsel for the respondents submitted that the petitioner couldnG(tm)t come forward with a complaint about her non-promotion. Admittedly, she could not have worked in the organization in the post of P.A., (which she original held) on account of her disability. She willingly accepted the post of Receptionist; the DDA ensured that a separate seniority was maintained in relation to that post. As far as the issue of conveyance allowance is concerned, it is submitted that such allowance is payable only if the petitioner fell within the parameters prescribed by law. Since, her disability was below the limits, she was not entitled to claim the allowance as a matter of right. Learned counsel reiterated the stand of DDA that provisions of the Act cannot be made applicable to past grievances or transactions and are applicable only prospectively. Several judgments of this Court have held that the 1995 Act is a piece of beneficial legislation and has to be construed liberally. In Dilbagh Singh's case, it was also held that the liability to make provision for persons incurring disability while still in employment is an obligation of the State under Article 14 of the Constitution; to deprive such a person of normal service benefits solely on account of such disability would amount to unfair treatment and hostile discrimination. It was also noticed that even before the advent of the 1995 Act, the Supreme Court had spelt out obligations of employers to take measures for rehabilitation and re-deployment of such disabled employees. Narender Kumar Chandla's case is one such decision.

 

In the present case, admittedly, the only ground for 'down grading' the petitioner from the grade of PA/Welfare Officer was her bad eyesight. It was not as if she was unable to perform other tasks or was found incompetent. The DDA chose to utilise her services for these last more than 15 years. However, while doing so, it placed her in a lower grade. After repeated representations, the higher grade was restored to her, only w.e.f. 01.01.1996. However, the DDA has given a palliative which amounts to an illusion, namely, that the petitioner has been placed in a 'separate' seniority list. No attempt has been made to disclose as to whether such separate seniority would lead to any promotional avenue at all. Learned counsel for the respondent did not place any material in this regard; in fact he could not point out the post to which the petitioner would be promoted. Section 47 of the Act reads as follows:- 

 

"47. Non-discrimination in government employment. (1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service: Provided that, if an 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 benefits: Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. (2) No promotion shall be denied to a person merely on the ground of his disability:

 

Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provision of this section.

 

Section 47 was enacted as an unalterable, non-discriminatory standard to be followed by every establishment, in relation to their disabled employees, at the workplace. The provision does not admit deviation on account of an employer's compulsion or'inability to provide an alternative post or employment; indeed he is under a positive obligation to give some work or job to the disabled employee, who suffers injury or incurs disability, and protect the existing terms and conditions of service, if necessary, by keeping him "on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier" Section 47(2) was enacted for the specific purpose of entitling disabled employees their right to promotion. The non-discriminatory standard imposed upon the employer here is that no discrimination can be practiced against a person with disability or impairment, so as to deny promotion. The only exception carved out in this regard is that classes of establishments can be exempted from the obligation to promote such employees. I am of the opinion that the stand of the respondents, in denying any promotional avenue, is in contravention of Section 47(2). Nothing was brought to notice of the court, in these proceedings, that the assignment of a suitable job involving higher responsibility to the petitioner was completely untenable, or that she is utterly unworthy or incompetent. Indeed, but for the unfortunate disability incurred by her, she was working as PA/ Welfare Officer. As far as the issue regarding denial of conveyance allowance is concerned, the DDA, in the impugned order, had indicated that such a benefit would be considered. However, in the counter affidavit filed in these proceedings, its position is that the petitioner is not a person with disability, as she does not suffer from 40% disability of both the limbs. The term 'disability' has been defined in Section 2(i) to include blindness, as well as low vision. Section 2(u) defines a person with 'low vision' as one with impairment of visual functioning even after treatment or standard refractive correction, but who uses or is potentially capable of using vision for the planning or execution of a task with appropriate assistive device. The respondent itself in the counter affidavit has averred that as per the certificate issued in 2001, the petitioner's disability has been assessed at 75%. In view of 'this, and having regard to the definition of disability as well as the definition of 'person with low vision', I am of the opinion that the denial of conveyance allowance, in the absence of any other impediment, is arbitrary and without application of mind. Besides, the DDA, in none of its correspondence with the petitioner had stated that she is disentitled to such allowance. In view of the foregoing reasons, a direction is issued to the DDA to treat the petitioner as eligible for promotion to the next higher grade, subject to her having put in the requisite eligibility period of service, and her otherwise being qualified to hold the post. She shall be considered for promotion, in accordance with the rules, on the basis of her seniority in the grade of PA, which shall include the period spent by her as a receptionist (as she served in the post on account of her disability. A further direction is issued to the DDA to make appropriate payment of conveyance allowance, having regard to the nature of the petitioner's disability. The petitioner shall be entitled to arrears of such conveyance allowance, from 1-1-2004 The respondent is directed to consider the case of the petitioner, and pass suitable orders, within a period of 6 weeks from today.