Deaf & Dumb persons - transport allowance on par with other Blind & Orthopedically handicapped government employees - writ for directions to Governments of central and state - Apex court allowed the same =
This Writ Petition has been preferred by two Associations
representing the Deaf and Dumb persons seeking a Writ of Mandamus directing
the Central and State Governments to grant transport allowance to its
government employees suffering from hearing impairment in equal with that
is being given to blinds and orthopedically handicapped government
employees and also for further consequential reliefs =
The deaf and dumb persons have an inherent dignity and the right to
have their dignity respected and protected is the obligation on the State.
Human dignity of a deaf and dumb person is harmed when he is being
marginalized, ignored or devalued on the ground that the disability that he
suffers is less than a visually impaired person which, in our view, clearly
violates Article 21 of the Constitution of India.
Comparison of
disabilities among “persons of disabilities”, without any rational basis,
is clearly violative of Articles 14 of the Constitution of India.
In our
view, the recommendation made by the Ministry of Health and Family Welfare
for extending the benefit of transport allowance to the Government
employees suffering from hearing impairment in equal with blinds and
orthopaedically handicapped Government employees is perfectly legal and is
in consonance with Articles 14 and 21 of the Constitution of India.
23. Under such circumstances, we are inclined to allow this writ petition
and direct the Respondents to grant transport allowance to deaf and dumb
persons also on par with blinds and orthopaedically handicapped employees
of Central and the State Governments and other establishments wherever such
benefits have been extended to the blinds and orthopaedically handicapped
employees. Ordered accordingly.
REPORTABLE
IN THE SUPREME COURT OF INDIA
ORDINARY CIVIL JURISDICTION
WRIT PETITION (CIVIL) NO. 107 OF 2011
Deaf Employees Welfare Association &
Another .. Petitioners
Versus
Union of India & Others .. Respondents
J U D G M E N T
K. S. RADHAKRISHNAN, J.
1. This Writ Petition has been preferred by two Associations
representing the Deaf and Dumb persons seeking a Writ of Mandamus directing
the Central and State Governments to grant transport allowance to its
government employees suffering from hearing impairment in equal with that
is being given to blinds and orthopedically handicapped government
employees and also for further consequential reliefs.
2. The Ministry of Finance, Government of India vide its Office
Memorandum (for short ‘OM’) dated 31.8.1978 permitted conveyance allowance
to the employees of the Central Government borne or regular establishment
who are disabled, namely blind and orthopedically handicapped, with
disability of lower extremities. The Government of India, later, vide its
OM of Ministry of Finance, Department of Expenditure dated 16.4.1987,
consequent upon the introduction of C.C.S. (Revised Pay) Rules, 1986,
revised the rate of Conveyance allowance to disabled persons, namely blind
and orthopedically handicapped to 5% of the basic pay, subject to a maximum
of Rs.100/- per month.
3. The Ministry of Finance, Government of India vide its OM dated
3.10.1997, in accordance with the recommendations of the 5th Central Pay
Commission abolished the Conveyance Allowance granted vide OM dated
31.8.1978 and, instead, replaced it by transport allowance to be paid to
blind and orthopedically handicapped employees at double the normal rates
prescribed under the said OM dated 3.10.1997.
4. The Deaf and Dumb Association submitted several representations after
coming into force the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995 (for short ‘The
Disabilities Act”) for extending the benefits of transport allowance to
them also. Their representation was considered by the Ministry of Health
and Family Welfare, Department of Health and they issued an OM dated
12.5.2003, which reads as follows:
“ OFFICE MEMORANDUM
Subject: Grant of Conveyance Allowance to Blind and Orthopaedically
Handicapped Central Government employees – regarding.
The undersigned is directed to refer to Ministry of Finance UO
No. 21(1)/97-E.II(B) dated 17th July 2002 on the subject mentioned
above and to state that the matter was examined in consultation with
the subject experts and the Ministry of Social Justice and
Empowerment. While the technical experts believed that the deaf and
dumb generally do not require physical assistance for commuting to and
fro from their place of residence to their place of duty, the Ministry
of Social Justice and Empowerment strongly favoured the grant of
conveyance allowance to deaf and dumb employees of the Central
Government.
In the final view, it is recommended that it would not be just
and fair to equate the disability of deaf and dumb persons with those
of blind persons in so far as transport allowance/facility is
concerned.
Sd/-
Deputy Secretary to the Government of India”
5. The Ministry of Road Transport and Highways also sent a proposal to
the Ministry of Finance to grant transport allowance at enhanced rates for
hearing handicapped persons at par with the blind persons. Ministry of
Road Transport and Highways also held a meeting on 2.3.2006 for examining
the case for grant of conveyance allowance to the deaf and dumb employees
of the Central Government and recommended for grant of conveyance allowance
to them as well. The request was considered by the Ministry of Finance,
Department of Expenditure and, vide OM dated 26.6.2006, it directed the
Ministry of Finance to clarify the contradictory stand earlier taken and
requested them to forward their final view. The Ministry of Health and
Family Welfare again examined the issue and recommended for transport
allowance at enhanced rates for Hearing Handicapped persons on a par with
the blind persons. The OM dated 26.6.2006 reads as follows:
“ OFFICE MEMORANDUM
Subject: Grant of Transport Allowance at enhanced rate for Hearing
Handicapped persons at par with blind persons.
The undersigned is directed to refer to Ministry of Finance OM
No. 21(1)/97-E.II(B) dated 13th June 2006 on the subject mentioned
above and to state that the matter was got re-examined by the Ministry
by a committee of specialists in the area, which recommended the grant
of special transport allowance at enhanced rate to hearing impaired
personnel in view of the following reasons:-
1) The disability conditions brought about by nature are the
same for all disabled. Society and the people have to
appreciate it and support them.
2) For any transportation system audio based signaling system
would always be different for hearing impaired. They require
special assistance.
The Ministry of Health & Family Welfare, therefore, recommend
grant of special transport allowance at enhanced rate for Hearing
Handicapped.
The proposal has been seen & approved by Secretary (H&FW).
Sd/-
Under Secretary to the Government of India”
6. The Ministry of Finance, however, vide its OM dated 30.11.2006
advised the Ministry of Health and Family Welfare to refer the issue to
the 6th Central Pay Commission for getting their recommendation. The
Ministry of Health and Family Welfare, however, did not take up the matter
with the 6th Central Pay Commission. The 6th Central Pay Commission
recommended that physically disabled employees shall continue to draw the
allowance at double the normal rates. Following that, Ministry of Finance
issued an OM dated 29.8.2008 stipulating that the blind or orthopedically
handicapped employees, in terms of Ministry of Finance’s order vide OM
dated 3.10.1997, shall continue to draw the allowance at double the normal
rates. The Ministry of Social Justice and Empowerment again approached
the Ministry of Finance in February 2013 requesting to consider the issue
of grant of double transport allowance to hearing handicapped employees.
OM dated 22.3.2013 issued by the Ministry of Health and Family Welfare
reads as follows:
“ Office Memorandum
Subject: Request to sanction the transport allowance at double
rates to Deaf Central Government Employees in various
Central Government Offices – reg..
The undersigned is directed to say that a representation has
been received from Shri S. Murugan, General Secretary, All India
Central Government Deaf Employees Association, Secundrabad (A0) (copy
enclosed) regarding revision of transport allowance at double rate to
deaf employees working under the Central Government Offices/workshops.
2. The matter was considered in this Ministry and recommended that
as the Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995, lists ‘hearing impairment’
as disability, therefore, all officials who are deaf/hearing
impairment with hearing loss of 60 decibels or more in the better ear,
working under Central Government Offices may also be made eligible for
transport allowance at double the normal rate as has been given to
loco-motor disabled and visual disabled (Blind) employees.
3. Accordingly, it is requested to issue specific instructions to
include hearing impaired employees for extending of transport
allowance at double rate as covered under the provisions of para 2(i)
of the Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995.
This issues with the approval of Secretary (H&FW).
Sd/-
Under Secretary to the Government of India.”
7. The Ministry of Finance again considered the request of the Ministry
of Health and Family Welfare on 2.7.2013 and did not take any action, but
sought for clarification by the Ministry of Health and Family Welfare.
The Ministry of Health and Family Welfare then issued an OM dated
27.9.2013 and again recommended for the transport allowance at double the
normal rates as is being given to the loco-motor disabled and visually
disabled (Blind) employees on the following grounds:
i) The Persons with Disabilities (Equal Opportunities, Protection
of Rights and Full Participation) Act, 1995, lists “hearing
impairment” (loss of 60 decibels or more in the better ear in
the conversational range of frequencies) as disability.
ii) Travelling risk for deaf/hearing impaired employees is as much
as with other disability.
iii) Hearing impaired persons cannot communicate to bus conductors,
auto and taxi drivers as a normal person can do.
iv) Time and effort required to reach destination is considerably
more as compared to normal persons.
v) Hearing impaired persons end up spending more money in
travelling as compared to normal persons.
8. We notice that, in spite of the recommendation made by the Ministry
of Health and Family Welfare, Ministry of Finance, Department of
Expenditure struck to their earlier stand and pointed out that since the
Government has already constituted 7th Central Pay Commission, it would be
appropriate that the said Pay Commission would examine the claim made by
the Deaf and Dumb persons and, hence, this writ petition.
9. Pleas made by the deaf and dumb persons, it may be noticed, fell into
deaf ears in all these years, while their claim has to be considered in a
dispassionate manner with a human touch, especially in the wake of the
Disabilities Act and on the basis of the various international Conventions,
to which India is a party. The Economic and Social Commission for Asia and
the Pacific (ESCAP) in a meeting in December 1992 in Beijing, declared the
period 1993-2000 as the Asian and Pacific Decade of Disabled Persons. Even
before that, it is pertinent to note, that Ministry of Finance, Government
of India had, vide its order dated 31.8.1978, accorded its sanction for
granting conveyance allowance to employees of the Central Government borne
on regular establishment who were disabled, namely blind and orthopedically
handicapped persons. India is a signatory to the above mentioned
Convention. Being a signatory to that Convention, it was obligatory on the
part of India to enact a suitable legislation to give effect to the
Convention. Accordingly, the Disabilities Act, 1995 was enacted.
10. We may, in this regard, refer to the “UN Convention on Protection and
Promotion of the Rights and Dignity of Persons with Disabilities”, 2008.
India is a signatory to that Convention as well. Article 2 of the
Convention reads as follows:
"Discrimination on the basis of disability" means any
distinction, exclusion or restriction on the basis of disability which
has the purpose or effect of impairing or nullifying the recognition,
enjoyment or exercise, on an equal basis with others, of all human
rights and fundamental freedoms in the political, economic, social,
cultural, civil or any other field. It includes all forms of
discrimination, including denial of reasonable accommodation;
"Reasonable accommodation" means necessary and appropriate
modification and adjustments not imposing a disproportionate or undue
burden, where needed in a particular case, to ensure to persons with
disabilities the enjoyment or exercise on an equal basis with others
of all human rights and fundamental freedoms.”
11. We have already indicated that India is a signatory to both the
Conventions, i.e. the Beijing Convention, 1992 and UN Convention, 2008. We
have to understand the scope of the Disabilities Act in the light of the
above mentioned Conventions.
12. The Disabilities Act does not create any barrier or discrimination
among persons with disabilities. Sections 2(i) and (l) of the Disabilities
Act defines the expressions ‘disability’ and ‘hearing impairment’
respectively, which read as follows:
“2(i). “disability” means-
i) blindness;
ii) low vision;
iii) leprosy-cured;
iv) hearing impairment;
v) locomotor disability;
vi) mental retardation;
vii) mental illness.
2(l). “Hearing impairment” means loss of sixty decibels or more in the
better ear in the conversational range of frequencies.”
Section 2(o) defines “locomotor disability” which reads as follows:
“(o) “locomotor disability” means disability of the bones, joints or
muscles leading to substantial restriction of the movement of the
limbs or any form of cerebral palsy.”
Section 2(b) defines the expression “blindness” as follows:
“(b) “blindness” refers to a condition where a person suffers from
any of the following conditions, namely:-
i) total absence of sight; or
ii) visual acuity not exceeding 6/60 or 20/200 (snellen) in the
better eye with correcting lenses; or
iii) limitation of the field of vision subtending an angle of 20
degree or worse.”
Section 2(t) of the Act defines ‘person with disability”, which reads as
follows:
“(t) “Person with disability” means a person suffering from not less
than forty per cent of any disability as certified by a medical
authority.”
13. Chapter V of the Act provides for the appropriate Governments and
local authorities to provide children with disabilities free education,
makes schemes and programmes for non-formal education etc. Chapter VII
of the Act deals with the reservation of posts for the “persons with
disabilities”. Section 32 of the Act states that the appropriate
Government shall identify posts in the establishments which can be reserved
for the persons with disabilities and also periodical intervals not
exceeding three years, review the list of posts identified and up-date the
list taking into consideration the developments in technology. Section 33
of the Act deals with the ‘Reservation of Posts’. Section 38 of the Act
provides that the appropriate Government and local authorities shall, by
notification, formulate schemes for ensuring employment of persons with
disabilities. Section 39 provides for all government educational
institutions to reserve seats for persons with disabilities.
14. Chapter VII deals with “Affirmative Action”. Section 42 of the Act
says that the appropriate Governments shall, by notification, make schemes
to provide aids and appliances to persons with disabilities. Section 43
deals with the “Schemes for preferential allotment of land for certain
purposes” and reads as follows:
“43. Schemes for preferential allotment of land for certain purposes.-
The appropriate Governments and local authorities shall by
notification frame schemes in favour of persons with disabilities, for
the preferential allotment of land at concessional rates of –
a) house;
b) setting up business;
c) setting up of special recreation centres;
d) establishment of special schools;
e) establishment of research centres;
f) establishment of factories by entrepreneurs with
disabilities.”
15. Chapter VIII of the Disabilities Act deals with “Non-Discrimination”.
Section 44 of the Act deals with the ‘Non-discrimination in transport’,
which reads as follows:
“44. Non-discrimination in transport.- Establishments in the
transport sector shall, within the limits of their economic capacity
and development for the benefit of persons with disabilities, take
special measures to –
a) adapt rail compartments, buses, vessels and aircrafts in
such a way as to permit easy access to such persons;
b) adapt toilets in rail compartments, vessels, aircrafts and
waiting rooms in such a way as to permit the wheel chair
users to use them conveniently.”
16. Sections 45, 46 and 47 of the Disabilities Act are also relevant,
which reads as follows:
“45. Non-discrimination on the road.- The appropriate Governments and
the local authorities shall, within the limits of their economic
capacity and development, provide for –
a) installation of auditory signals at red lights in the public
roads for the benefit of persons with visually handicap;
b) causing curb cuts and slopes to be made in pavements for an
easy access of wheel chair users;
c) engraving on the surface of the zebra crossing for the blind
or for persons with low vision;
d) engraving on the edge of railway platforms for the blinds or
for persons with low vision;
e) devising appropriate symbols of disability;
f) warning signals at appropriate places.
46. Non-discrimination in the built environment.- The appropriate
Governments and the local authorities shall, within the limits of
their economic capacity and development, provide for-
a) ramps in public buildings;
b) adaptation of toilets for wheel chair users;
c) Braille symbols and auditory signals in elevators or lifts;
d) Ramps in hospitals, primary health centres and other medical
care and rehabilitation institutions.
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 provisions of this
section.”
17. Chapter XIII deals with “Social Security”. Section 68 deals with the
‘Unemployment allowance’, which reads as under:
“68. Unemployment allowance.- The appropriate Governments shall
within the limits of their economic capacity and development shall by
notification frame a scheme for payment of an unemployment allowance
to persons with disabilities registered with the Special Employment
Exchange for more than two years and who could not be placed in any
gainful occupation.”
18. The Disabilities Act, as already indicated, states that the “persons
with disabilities” means persons suffering from not less than 40% of “any
disability”, as certified by the medical doctor. When a person is having
any of the disabilities mentioned in Section 2(i) and is so certified by
the Medical Doctor, he is entitled to the benefits of all the Schemes and
benefits provided by the Government and there can be no further
discrimination among the persons with varied or different types of
disabilities. In the matter of affirmative action, in our view, there
cannot be further discrimination between a person with disability of
‘blindness’ and a person with disability of ‘hearing impairment’. Such
discrimination has not been envisaged under the Disabilities Act. All the
categories of persons mentioned in Section 2(i) have their own
disadvantages, peculiar to themselves. A ‘visually impaired person’ cannot
be equated with ‘hearing impaired person’ and vice versa. Both have
different type and mode of disability. For a blind person, visibility may
be poor, sometimes zero per cent, but would be able to hear and understand
what is going on in and around him. At the same time, a deaf and dumb
person could see, but would not be able to talk and hear what is going on
around him. The nature of disability of those categories of persons may
not be same, but the disabilities they suffer are to be addressed with care
and compassion.
19. Ministry of Finance, Government of India, took the view that a
visually impaired person cannot be equated with hearing impaired person
since persons who are deaf and dumb are not physically dependent on others
for commuting from one place to another, hence they are not entitled to
double rate of transport allowance. The view expressed by the Ministry of
Finance, in spite of the recommendations made by the Ministry of Health and
Family Welfare, for not providing transport allowance to its Government
employees suffering from hearing impairment, cannot be sustained. We are
of the view that the travel undertaken by the deaf and hearing impaired
employees is equally arduous and burdensome as compared to persons having
other disabilities referred to in Section 2(i) of the Act. Hearing
impaired persons cannot communicate with the bus conductors, auto and taxi
drivers as a normal person can do. Invariably, they have to seek the
assistance of a stranger. Time and effort required to reach a destination
is considerably more as compared to normal persons. A hearing impaired
person sometimes may end up spending more money in travelling as compared
to normal persons. At times, he is required to seek assistance of
strangers or other travelers.
20. The hearing impaired person also would not be able to hear the sound
of horn and passing vehicles and, at times, will have to seek the
assistance of other co-passengers or strangers on the road. We find it
difficult to subscribe the view that disability, as envisaged under Section
2(a) of the Act, with respect to the hearing impaired persons, is less than
the disability of a blind person. No such discrimination has ever been
made or visualized among the persons with disabilities mentioned in Section
2(i) of the Act as they form a class by themselves. A further
discrimination amongst themselves is clearly violative of Article 14 of the
Constitution of India.
21. The Disabilities Act deals with a well defined class i.e. “persons
with disabilities” mentioned in Section 2(i). The nature of disability may
differ from person to person included in Section 2(i), but all such persons
have been categorized as a group of “persons with disabilities” under
Section 2(i) read with Section 2(t) of the Act. In our view, the
differentia sought to be canvassed by the Ministry of Finance has no
rational relation to the object sought to be achieved by the Disabilities
Act, which envisages to give equal opportunities, protection and rights to
the “persons with disabilities”. Equality of law and equal protection of
law be afforded to all the “persons with disabilities” while participating
in Governmental functions. Transport allowance is given to Government
employees since many of the Government employees may not be residing in and
around their places of work. Sometimes, they have to commute long
distances to and fro. There has been an unprecedented increase in the
commutation time between the residence and place of work which effects the
work environment in offices adversely as the employee spend much of their
energy in commuting and, in the case of persons with disabilities, the
situation is more grave.
21-A. State Commission for Persons with Disabilities, Kerala vide its
letter dated 21.3.2003, evidently, taking note of those aspects, requested
the Government of Kerala to extend the benefit of conveyance allowance to
deaf and dumb employees also and pursuant to the same, the Government of
Kerala vide G.O.(P) No.277/2005/Fin. of Finance Department dated 14.6.2005
extended the benefit of conveyance allowance sanctioned as per the
Government Orders to the Government employees with hearing impaired as per
the disability defined in the Disabilities Act. The State of Andhra
Pradesh, on the recommendations of the Anomalies Committee issued Orders
No.22, Finance (TA) Department dated 17.12.2004 on the recommendation of
One Man Committee in 2006, vide G.O. MS. No.197 dated 6.7.2006 of Finance
(TA) Department extended the benefit of Conveyance Allowance to deaf and
dumb employees on par with physically handicapped employees.
22. The deaf and dumb persons have an inherent dignity and the right to
have their dignity respected and protected is the obligation on the State.
Human dignity of a deaf and dumb person is harmed when he is being
marginalized, ignored or devalued on the ground that the disability that he
suffers is less than a visually impaired person which, in our view, clearly
violates Article 21 of the Constitution of India. Comparison of
disabilities among “persons of disabilities”, without any rational basis,
is clearly violative of Articles 14 of the Constitution of India. In our
view, the recommendation made by the Ministry of Health and Family Welfare
for extending the benefit of transport allowance to the Government
employees suffering from hearing impairment in equal with blinds and
orthopaedically handicapped Government employees is perfectly legal and is
in consonance with Articles 14 and 21 of the Constitution of India.
23. Under such circumstances, we are inclined to allow this writ petition
and direct the Respondents to grant transport allowance to deaf and dumb
persons also on par with blinds and orthopaedically handicapped employees
of Central and the State Governments and other establishments wherever such
benefits have been extended to the blinds and orthopaedically handicapped
employees. Ordered accordingly.
……..……………………..J.
(K.S. Radhakrishnan)
……………………………J.
(A.K. Sikri)
New Delhi,
December 12, 2013.
This Writ Petition has been preferred by two Associations
representing the Deaf and Dumb persons seeking a Writ of Mandamus directing
the Central and State Governments to grant transport allowance to its
government employees suffering from hearing impairment in equal with that
is being given to blinds and orthopedically handicapped government
employees and also for further consequential reliefs =
The deaf and dumb persons have an inherent dignity and the right to
have their dignity respected and protected is the obligation on the State.
Human dignity of a deaf and dumb person is harmed when he is being
marginalized, ignored or devalued on the ground that the disability that he
suffers is less than a visually impaired person which, in our view, clearly
violates Article 21 of the Constitution of India.
Comparison of
disabilities among “persons of disabilities”, without any rational basis,
is clearly violative of Articles 14 of the Constitution of India.
In our
view, the recommendation made by the Ministry of Health and Family Welfare
for extending the benefit of transport allowance to the Government
employees suffering from hearing impairment in equal with blinds and
orthopaedically handicapped Government employees is perfectly legal and is
in consonance with Articles 14 and 21 of the Constitution of India.
23. Under such circumstances, we are inclined to allow this writ petition
and direct the Respondents to grant transport allowance to deaf and dumb
persons also on par with blinds and orthopaedically handicapped employees
of Central and the State Governments and other establishments wherever such
benefits have been extended to the blinds and orthopaedically handicapped
employees. Ordered accordingly.
REPORTABLE
IN THE SUPREME COURT OF INDIA
ORDINARY CIVIL JURISDICTION
WRIT PETITION (CIVIL) NO. 107 OF 2011
Deaf Employees Welfare Association &
Another .. Petitioners
Versus
Union of India & Others .. Respondents
J U D G M E N T
K. S. RADHAKRISHNAN, J.
1. This Writ Petition has been preferred by two Associations
representing the Deaf and Dumb persons seeking a Writ of Mandamus directing
the Central and State Governments to grant transport allowance to its
government employees suffering from hearing impairment in equal with that
is being given to blinds and orthopedically handicapped government
employees and also for further consequential reliefs.
2. The Ministry of Finance, Government of India vide its Office
Memorandum (for short ‘OM’) dated 31.8.1978 permitted conveyance allowance
to the employees of the Central Government borne or regular establishment
who are disabled, namely blind and orthopedically handicapped, with
disability of lower extremities. The Government of India, later, vide its
OM of Ministry of Finance, Department of Expenditure dated 16.4.1987,
consequent upon the introduction of C.C.S. (Revised Pay) Rules, 1986,
revised the rate of Conveyance allowance to disabled persons, namely blind
and orthopedically handicapped to 5% of the basic pay, subject to a maximum
of Rs.100/- per month.
3. The Ministry of Finance, Government of India vide its OM dated
3.10.1997, in accordance with the recommendations of the 5th Central Pay
Commission abolished the Conveyance Allowance granted vide OM dated
31.8.1978 and, instead, replaced it by transport allowance to be paid to
blind and orthopedically handicapped employees at double the normal rates
prescribed under the said OM dated 3.10.1997.
4. The Deaf and Dumb Association submitted several representations after
coming into force the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995 (for short ‘The
Disabilities Act”) for extending the benefits of transport allowance to
them also. Their representation was considered by the Ministry of Health
and Family Welfare, Department of Health and they issued an OM dated
12.5.2003, which reads as follows:
“ OFFICE MEMORANDUM
Subject: Grant of Conveyance Allowance to Blind and Orthopaedically
Handicapped Central Government employees – regarding.
The undersigned is directed to refer to Ministry of Finance UO
No. 21(1)/97-E.II(B) dated 17th July 2002 on the subject mentioned
above and to state that the matter was examined in consultation with
the subject experts and the Ministry of Social Justice and
Empowerment. While the technical experts believed that the deaf and
dumb generally do not require physical assistance for commuting to and
fro from their place of residence to their place of duty, the Ministry
of Social Justice and Empowerment strongly favoured the grant of
conveyance allowance to deaf and dumb employees of the Central
Government.
In the final view, it is recommended that it would not be just
and fair to equate the disability of deaf and dumb persons with those
of blind persons in so far as transport allowance/facility is
concerned.
Sd/-
Deputy Secretary to the Government of India”
5. The Ministry of Road Transport and Highways also sent a proposal to
the Ministry of Finance to grant transport allowance at enhanced rates for
hearing handicapped persons at par with the blind persons. Ministry of
Road Transport and Highways also held a meeting on 2.3.2006 for examining
the case for grant of conveyance allowance to the deaf and dumb employees
of the Central Government and recommended for grant of conveyance allowance
to them as well. The request was considered by the Ministry of Finance,
Department of Expenditure and, vide OM dated 26.6.2006, it directed the
Ministry of Finance to clarify the contradictory stand earlier taken and
requested them to forward their final view. The Ministry of Health and
Family Welfare again examined the issue and recommended for transport
allowance at enhanced rates for Hearing Handicapped persons on a par with
the blind persons. The OM dated 26.6.2006 reads as follows:
“ OFFICE MEMORANDUM
Subject: Grant of Transport Allowance at enhanced rate for Hearing
Handicapped persons at par with blind persons.
The undersigned is directed to refer to Ministry of Finance OM
No. 21(1)/97-E.II(B) dated 13th June 2006 on the subject mentioned
above and to state that the matter was got re-examined by the Ministry
by a committee of specialists in the area, which recommended the grant
of special transport allowance at enhanced rate to hearing impaired
personnel in view of the following reasons:-
1) The disability conditions brought about by nature are the
same for all disabled. Society and the people have to
appreciate it and support them.
2) For any transportation system audio based signaling system
would always be different for hearing impaired. They require
special assistance.
The Ministry of Health & Family Welfare, therefore, recommend
grant of special transport allowance at enhanced rate for Hearing
Handicapped.
The proposal has been seen & approved by Secretary (H&FW).
Sd/-
Under Secretary to the Government of India”
6. The Ministry of Finance, however, vide its OM dated 30.11.2006
advised the Ministry of Health and Family Welfare to refer the issue to
the 6th Central Pay Commission for getting their recommendation. The
Ministry of Health and Family Welfare, however, did not take up the matter
with the 6th Central Pay Commission. The 6th Central Pay Commission
recommended that physically disabled employees shall continue to draw the
allowance at double the normal rates. Following that, Ministry of Finance
issued an OM dated 29.8.2008 stipulating that the blind or orthopedically
handicapped employees, in terms of Ministry of Finance’s order vide OM
dated 3.10.1997, shall continue to draw the allowance at double the normal
rates. The Ministry of Social Justice and Empowerment again approached
the Ministry of Finance in February 2013 requesting to consider the issue
of grant of double transport allowance to hearing handicapped employees.
OM dated 22.3.2013 issued by the Ministry of Health and Family Welfare
reads as follows:
“ Office Memorandum
Subject: Request to sanction the transport allowance at double
rates to Deaf Central Government Employees in various
Central Government Offices – reg..
The undersigned is directed to say that a representation has
been received from Shri S. Murugan, General Secretary, All India
Central Government Deaf Employees Association, Secundrabad (A0) (copy
enclosed) regarding revision of transport allowance at double rate to
deaf employees working under the Central Government Offices/workshops.
2. The matter was considered in this Ministry and recommended that
as the Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995, lists ‘hearing impairment’
as disability, therefore, all officials who are deaf/hearing
impairment with hearing loss of 60 decibels or more in the better ear,
working under Central Government Offices may also be made eligible for
transport allowance at double the normal rate as has been given to
loco-motor disabled and visual disabled (Blind) employees.
3. Accordingly, it is requested to issue specific instructions to
include hearing impaired employees for extending of transport
allowance at double rate as covered under the provisions of para 2(i)
of the Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995.
This issues with the approval of Secretary (H&FW).
Sd/-
Under Secretary to the Government of India.”
7. The Ministry of Finance again considered the request of the Ministry
of Health and Family Welfare on 2.7.2013 and did not take any action, but
sought for clarification by the Ministry of Health and Family Welfare.
The Ministry of Health and Family Welfare then issued an OM dated
27.9.2013 and again recommended for the transport allowance at double the
normal rates as is being given to the loco-motor disabled and visually
disabled (Blind) employees on the following grounds:
i) The Persons with Disabilities (Equal Opportunities, Protection
of Rights and Full Participation) Act, 1995, lists “hearing
impairment” (loss of 60 decibels or more in the better ear in
the conversational range of frequencies) as disability.
ii) Travelling risk for deaf/hearing impaired employees is as much
as with other disability.
iii) Hearing impaired persons cannot communicate to bus conductors,
auto and taxi drivers as a normal person can do.
iv) Time and effort required to reach destination is considerably
more as compared to normal persons.
v) Hearing impaired persons end up spending more money in
travelling as compared to normal persons.
8. We notice that, in spite of the recommendation made by the Ministry
of Health and Family Welfare, Ministry of Finance, Department of
Expenditure struck to their earlier stand and pointed out that since the
Government has already constituted 7th Central Pay Commission, it would be
appropriate that the said Pay Commission would examine the claim made by
the Deaf and Dumb persons and, hence, this writ petition.
9. Pleas made by the deaf and dumb persons, it may be noticed, fell into
deaf ears in all these years, while their claim has to be considered in a
dispassionate manner with a human touch, especially in the wake of the
Disabilities Act and on the basis of the various international Conventions,
to which India is a party. The Economic and Social Commission for Asia and
the Pacific (ESCAP) in a meeting in December 1992 in Beijing, declared the
period 1993-2000 as the Asian and Pacific Decade of Disabled Persons. Even
before that, it is pertinent to note, that Ministry of Finance, Government
of India had, vide its order dated 31.8.1978, accorded its sanction for
granting conveyance allowance to employees of the Central Government borne
on regular establishment who were disabled, namely blind and orthopedically
handicapped persons. India is a signatory to the above mentioned
Convention. Being a signatory to that Convention, it was obligatory on the
part of India to enact a suitable legislation to give effect to the
Convention. Accordingly, the Disabilities Act, 1995 was enacted.
10. We may, in this regard, refer to the “UN Convention on Protection and
Promotion of the Rights and Dignity of Persons with Disabilities”, 2008.
India is a signatory to that Convention as well. Article 2 of the
Convention reads as follows:
"Discrimination on the basis of disability" means any
distinction, exclusion or restriction on the basis of disability which
has the purpose or effect of impairing or nullifying the recognition,
enjoyment or exercise, on an equal basis with others, of all human
rights and fundamental freedoms in the political, economic, social,
cultural, civil or any other field. It includes all forms of
discrimination, including denial of reasonable accommodation;
"Reasonable accommodation" means necessary and appropriate
modification and adjustments not imposing a disproportionate or undue
burden, where needed in a particular case, to ensure to persons with
disabilities the enjoyment or exercise on an equal basis with others
of all human rights and fundamental freedoms.”
11. We have already indicated that India is a signatory to both the
Conventions, i.e. the Beijing Convention, 1992 and UN Convention, 2008. We
have to understand the scope of the Disabilities Act in the light of the
above mentioned Conventions.
12. The Disabilities Act does not create any barrier or discrimination
among persons with disabilities. Sections 2(i) and (l) of the Disabilities
Act defines the expressions ‘disability’ and ‘hearing impairment’
respectively, which read as follows:
“2(i). “disability” means-
i) blindness;
ii) low vision;
iii) leprosy-cured;
iv) hearing impairment;
v) locomotor disability;
vi) mental retardation;
vii) mental illness.
2(l). “Hearing impairment” means loss of sixty decibels or more in the
better ear in the conversational range of frequencies.”
Section 2(o) defines “locomotor disability” which reads as follows:
“(o) “locomotor disability” means disability of the bones, joints or
muscles leading to substantial restriction of the movement of the
limbs or any form of cerebral palsy.”
Section 2(b) defines the expression “blindness” as follows:
“(b) “blindness” refers to a condition where a person suffers from
any of the following conditions, namely:-
i) total absence of sight; or
ii) visual acuity not exceeding 6/60 or 20/200 (snellen) in the
better eye with correcting lenses; or
iii) limitation of the field of vision subtending an angle of 20
degree or worse.”
Section 2(t) of the Act defines ‘person with disability”, which reads as
follows:
“(t) “Person with disability” means a person suffering from not less
than forty per cent of any disability as certified by a medical
authority.”
13. Chapter V of the Act provides for the appropriate Governments and
local authorities to provide children with disabilities free education,
makes schemes and programmes for non-formal education etc. Chapter VII
of the Act deals with the reservation of posts for the “persons with
disabilities”. Section 32 of the Act states that the appropriate
Government shall identify posts in the establishments which can be reserved
for the persons with disabilities and also periodical intervals not
exceeding three years, review the list of posts identified and up-date the
list taking into consideration the developments in technology. Section 33
of the Act deals with the ‘Reservation of Posts’. Section 38 of the Act
provides that the appropriate Government and local authorities shall, by
notification, formulate schemes for ensuring employment of persons with
disabilities. Section 39 provides for all government educational
institutions to reserve seats for persons with disabilities.
14. Chapter VII deals with “Affirmative Action”. Section 42 of the Act
says that the appropriate Governments shall, by notification, make schemes
to provide aids and appliances to persons with disabilities. Section 43
deals with the “Schemes for preferential allotment of land for certain
purposes” and reads as follows:
“43. Schemes for preferential allotment of land for certain purposes.-
The appropriate Governments and local authorities shall by
notification frame schemes in favour of persons with disabilities, for
the preferential allotment of land at concessional rates of –
a) house;
b) setting up business;
c) setting up of special recreation centres;
d) establishment of special schools;
e) establishment of research centres;
f) establishment of factories by entrepreneurs with
disabilities.”
15. Chapter VIII of the Disabilities Act deals with “Non-Discrimination”.
Section 44 of the Act deals with the ‘Non-discrimination in transport’,
which reads as follows:
“44. Non-discrimination in transport.- Establishments in the
transport sector shall, within the limits of their economic capacity
and development for the benefit of persons with disabilities, take
special measures to –
a) adapt rail compartments, buses, vessels and aircrafts in
such a way as to permit easy access to such persons;
b) adapt toilets in rail compartments, vessels, aircrafts and
waiting rooms in such a way as to permit the wheel chair
users to use them conveniently.”
16. Sections 45, 46 and 47 of the Disabilities Act are also relevant,
which reads as follows:
“45. Non-discrimination on the road.- The appropriate Governments and
the local authorities shall, within the limits of their economic
capacity and development, provide for –
a) installation of auditory signals at red lights in the public
roads for the benefit of persons with visually handicap;
b) causing curb cuts and slopes to be made in pavements for an
easy access of wheel chair users;
c) engraving on the surface of the zebra crossing for the blind
or for persons with low vision;
d) engraving on the edge of railway platforms for the blinds or
for persons with low vision;
e) devising appropriate symbols of disability;
f) warning signals at appropriate places.
46. Non-discrimination in the built environment.- The appropriate
Governments and the local authorities shall, within the limits of
their economic capacity and development, provide for-
a) ramps in public buildings;
b) adaptation of toilets for wheel chair users;
c) Braille symbols and auditory signals in elevators or lifts;
d) Ramps in hospitals, primary health centres and other medical
care and rehabilitation institutions.
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 provisions of this
section.”
17. Chapter XIII deals with “Social Security”. Section 68 deals with the
‘Unemployment allowance’, which reads as under:
“68. Unemployment allowance.- The appropriate Governments shall
within the limits of their economic capacity and development shall by
notification frame a scheme for payment of an unemployment allowance
to persons with disabilities registered with the Special Employment
Exchange for more than two years and who could not be placed in any
gainful occupation.”
18. The Disabilities Act, as already indicated, states that the “persons
with disabilities” means persons suffering from not less than 40% of “any
disability”, as certified by the medical doctor. When a person is having
any of the disabilities mentioned in Section 2(i) and is so certified by
the Medical Doctor, he is entitled to the benefits of all the Schemes and
benefits provided by the Government and there can be no further
discrimination among the persons with varied or different types of
disabilities. In the matter of affirmative action, in our view, there
cannot be further discrimination between a person with disability of
‘blindness’ and a person with disability of ‘hearing impairment’. Such
discrimination has not been envisaged under the Disabilities Act. All the
categories of persons mentioned in Section 2(i) have their own
disadvantages, peculiar to themselves. A ‘visually impaired person’ cannot
be equated with ‘hearing impaired person’ and vice versa. Both have
different type and mode of disability. For a blind person, visibility may
be poor, sometimes zero per cent, but would be able to hear and understand
what is going on in and around him. At the same time, a deaf and dumb
person could see, but would not be able to talk and hear what is going on
around him. The nature of disability of those categories of persons may
not be same, but the disabilities they suffer are to be addressed with care
and compassion.
19. Ministry of Finance, Government of India, took the view that a
visually impaired person cannot be equated with hearing impaired person
since persons who are deaf and dumb are not physically dependent on others
for commuting from one place to another, hence they are not entitled to
double rate of transport allowance. The view expressed by the Ministry of
Finance, in spite of the recommendations made by the Ministry of Health and
Family Welfare, for not providing transport allowance to its Government
employees suffering from hearing impairment, cannot be sustained. We are
of the view that the travel undertaken by the deaf and hearing impaired
employees is equally arduous and burdensome as compared to persons having
other disabilities referred to in Section 2(i) of the Act. Hearing
impaired persons cannot communicate with the bus conductors, auto and taxi
drivers as a normal person can do. Invariably, they have to seek the
assistance of a stranger. Time and effort required to reach a destination
is considerably more as compared to normal persons. A hearing impaired
person sometimes may end up spending more money in travelling as compared
to normal persons. At times, he is required to seek assistance of
strangers or other travelers.
20. The hearing impaired person also would not be able to hear the sound
of horn and passing vehicles and, at times, will have to seek the
assistance of other co-passengers or strangers on the road. We find it
difficult to subscribe the view that disability, as envisaged under Section
2(a) of the Act, with respect to the hearing impaired persons, is less than
the disability of a blind person. No such discrimination has ever been
made or visualized among the persons with disabilities mentioned in Section
2(i) of the Act as they form a class by themselves. A further
discrimination amongst themselves is clearly violative of Article 14 of the
Constitution of India.
21. The Disabilities Act deals with a well defined class i.e. “persons
with disabilities” mentioned in Section 2(i). The nature of disability may
differ from person to person included in Section 2(i), but all such persons
have been categorized as a group of “persons with disabilities” under
Section 2(i) read with Section 2(t) of the Act. In our view, the
differentia sought to be canvassed by the Ministry of Finance has no
rational relation to the object sought to be achieved by the Disabilities
Act, which envisages to give equal opportunities, protection and rights to
the “persons with disabilities”. Equality of law and equal protection of
law be afforded to all the “persons with disabilities” while participating
in Governmental functions. Transport allowance is given to Government
employees since many of the Government employees may not be residing in and
around their places of work. Sometimes, they have to commute long
distances to and fro. There has been an unprecedented increase in the
commutation time between the residence and place of work which effects the
work environment in offices adversely as the employee spend much of their
energy in commuting and, in the case of persons with disabilities, the
situation is more grave.
21-A. State Commission for Persons with Disabilities, Kerala vide its
letter dated 21.3.2003, evidently, taking note of those aspects, requested
the Government of Kerala to extend the benefit of conveyance allowance to
deaf and dumb employees also and pursuant to the same, the Government of
Kerala vide G.O.(P) No.277/2005/Fin. of Finance Department dated 14.6.2005
extended the benefit of conveyance allowance sanctioned as per the
Government Orders to the Government employees with hearing impaired as per
the disability defined in the Disabilities Act. The State of Andhra
Pradesh, on the recommendations of the Anomalies Committee issued Orders
No.22, Finance (TA) Department dated 17.12.2004 on the recommendation of
One Man Committee in 2006, vide G.O. MS. No.197 dated 6.7.2006 of Finance
(TA) Department extended the benefit of Conveyance Allowance to deaf and
dumb employees on par with physically handicapped employees.
22. The deaf and dumb persons have an inherent dignity and the right to
have their dignity respected and protected is the obligation on the State.
Human dignity of a deaf and dumb person is harmed when he is being
marginalized, ignored or devalued on the ground that the disability that he
suffers is less than a visually impaired person which, in our view, clearly
violates Article 21 of the Constitution of India. Comparison of
disabilities among “persons of disabilities”, without any rational basis,
is clearly violative of Articles 14 of the Constitution of India. In our
view, the recommendation made by the Ministry of Health and Family Welfare
for extending the benefit of transport allowance to the Government
employees suffering from hearing impairment in equal with blinds and
orthopaedically handicapped Government employees is perfectly legal and is
in consonance with Articles 14 and 21 of the Constitution of India.
23. Under such circumstances, we are inclined to allow this writ petition
and direct the Respondents to grant transport allowance to deaf and dumb
persons also on par with blinds and orthopaedically handicapped employees
of Central and the State Governments and other establishments wherever such
benefits have been extended to the blinds and orthopaedically handicapped
employees. Ordered accordingly.
……..……………………..J.
(K.S. Radhakrishnan)
……………………………J.
(A.K. Sikri)
New Delhi,
December 12, 2013.
