"No promotion shall be denied to a person merely on the ground of his disability... "
Disability is a matter of perception, says Martina Navratilova. "If you can do just one thing well, you're needed by someone." Tragically, however, the disabled often face inequity.
One such instance comes to light through a recent verdict of the Madras High Court in J. John Wincent vs 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.
John had joined the services of the Department as a Lower Division Clerk in May 1990. "Thereafter, he was promoted as Upper Division Clerk in the year 1995.
Consequent to the re-designation of the post in the year 2002, he is holding the post of Tax Assistant," reads the text of the judgment dated April 27.
John, by virtue of his experience, made a representation to the Department to consider him for promotion to the post of Inspector of Central Excise and Customs. "However, the respondents 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." How unfortunate!
There were more people like John who had been refused promotion on account of disability. They had approached the Central Administrative Tribunal, which issued directions to the Department to consider the applications of the physically challenged persons for the post of Inspector of Central Excise and Customs.
What happened thereafter? The Department called upon John `to undergo endurance test of cycling and walking.' And `he was found to have performed the same successfully.' Yet, in 2004, John was rejected on the ground that he did not have `the prescribed height'.
He approached the Tribunal for remedy. Disappointingly, it held that there was no scope for relaxing the standards prescribed in the Recruitment Rules, and rejected John's application. Aggrieved, he took his case before the High Court.
Speaking for John, his counsel V. Raghavachari said that the Tribunal had erred in rejecting the claim of the petitioner to the benefits conferred under Section 47(2) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 in the matter of promotion. Also, at the time of joining the service John's height was 160 cm, as substantiated by the physical fitness certificate. For the Department, it was R. Santhanam who argued, and he reiterated the contentions earlier urged before the Tribunal.
Equality for disabled
"The short but core point for consideration in this writ petition is: whether the petitioner is entitled to promotion to the post of Inspector of Central Excise and Customs in spite of the disability suffered by him during the course of his employment?" observed Justices P. D. Dinakaran and R. Sudhakar of the Madras High Court, who heard the case.
"All countries today need to apply affirmative action to ensure that the women and the disabled are equal to all of us," said the court, citing Nelson Mandela. Though the Constitution of India does not specifically prescribe discrimination on the ground of `disability', it does contain non-discriminatory provisions that guarantee equality and equal opportunities for all citizens as in Articles 14 and 16, pointed out the court.
"The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 treats disability as a civil right rather than a health and welfare issue, and recognises the need to integrate persons with disabilities with the mainstream of society by some normative action."
Section 47 of this Act, which Raghavachari referred to is titled `Non-discrimination in Government employments'. Sub-section 1 says, "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, he 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."
Sub-section 2, which is more relevant to the case on hand, says: "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."
The highly educative verdict refers to precedents such as Shri Suhas Vasant Karnik vs Union of India and Other, in which the Bombay High Court examined whether a person suffering from blindness could be declared ineligible for seeking promotion.
It had held that the Government had a "Constitutional obligation to encourage participation of the visually handicapped persons in activities of the bank on par with other members of the staff and consider the cases of visually handicapped for promotion fairly and equitably."
Section 47(2) had come under test in Union of India vs Sanjay Kumar Jain (2003), before the Delhi High Court. In this case, "a person who was blind due to Retinitis pigmentosa was denied permission to appear for viva-voce test for promotion to a Group B post by the management of Western Railway."
The verdict `quashed the order of denial of permission to appear in viva-voce test', because `provision of Section 47(2) is mandatory'. Interestingly, the case of Sanjay Kumar Jain went to the apex court. There it was held that in the absence of any notification exempting the establishment in question, the blind employee could not be denied promotion.
Resuming John's case, a letter dated January 27, 2004, from the Department of Revenue, Government of India to the Commissioner of Central Excise, Coimbatore, was of support to the petitioner. The letter spoke of the Central Board of Excise and Customs representing before the Ministry of Social Justice and Empowerment that `posts of PO/EO and Inspector, Central Excise and Customs... have arduous field duties, which cannot be expected to be performed by the handicapped persons'.
The matter is still under consideration of that Ministry, said the letter. Thankfully, though, the Board had decided `to permit physically handicapped persons to undertake the physical endurance test and promote them as per Reservation quota if they qualified the test till an exemption is received from the Ministry of Social Justice and Empowerment.'
The court, therefore, ruled: "In our considered opinion, as the petitioner has performed the endurance test successfully, his case can be considered for promotion to the post of Inspector of Central Excise and Customs, on par with others, who suffered physical disabilities and were promoted subsequent to the directions of the Tribunal."
One hopes the Department isn't planning to appeal against this judgment. For, as Scott Hamilton says, "The only disability in life is a bad attitude." And the Bard, weary of the world's inequities, would sing: "Tired with all these... right perfection wrongfully disgraced, and strength by limping sway disabled, and art made tongue-tied by authority..."
"I want to hire an expert in the field of M&A taxation."
"On the buyer's side, or the seller's?"