Legislation For Disabled Should Not Merely Remain In Statute Book, Rather Spirit Behind It Must Be Applied By Authorities: Bombay HC
The Bombay High Court said that the legislation for the disabled should not merely remain in the statute book, rather the spirit behind the legislation must be applied by all authorities showing appropriate sensitivity.
The Court was dealing with a petition filed by a specially-abled woman who was a visually impaired candidate for the post of Assistant in Railways.
A Division Bench of Justice Nitin Jamdar and Justice M.M. Sathaye observed, “The stand taken by the Respondents that they are bound by the clause of advertisement to apply it uniformly and inflexibly and they therefore cannot remedy the situation, in spite of Court calling upon them to do so, overlooks the responsibility to treat persons with disabilities differently. The legislation for the disabled should not merely remain in the statute book; rather, the spirit behind the legislation must be applied by all authorities in its practical application showing appropriate sensitivity and flexibility. Individuals such as the Petitioner, who are 100% visually impaired, cannot be expected to stand on equal footing with other candidates in terms of usual activities.”
The Bench added that unless there is evidence of fraud, misrepresentation, or basic ineligibility, reasonable efforts should be made to modify the procedures to align with the objectives of the legislation.
Advocate Uday P. Warunjikar appeared on behalf of the petitioner while Advocate L.T. Satelkar appeared on behalf of the respondents.
In this case, a notification was issued by the Railways Recruitment Board inviting online registration of applications from suitable candidates for various posts, including the post of Assistant in Level-1 in ‘D’ grade. The petitioner woman being 100% permanently visually impaired, applied for the position of Assistant under the Persons with Benchmark Disabilities category, specifying her disability. She provided a disability certificate and to fill out the application form, she sought assistance from a person at an Internet Café. However, during the process, her date of birth was erroneously entered as January 10, 1992 instead of the correct date i.e., January 10, 1993.
The examination was scheduled in March 2021 and she received the hall ticket/e-call letter. Successfully passing the examination, she subsequently received a call letter for document verification and medical verification. She was informed that she could later modify the date of birth and submit the updated Aadhaar Card. However, when attempting to submit the same during supplementary document verification, it was refused. She made a representation to the Chairperson of the Railway Recruitment Cell but no response was received and her candidature was rejected. Hence, she approached the court.
The High Court in view of the above facts said, “The concept of fairness in dealing with person with disabilities is not only of treating them equal with others but of an affirmative action. … Simply stating that discrimination against persons with disabilities is prohibited is insufficient. Additional support is required to mitigate the impact of disabilities. The principle of Reasonable Accommodation in Section 3 of the Rights of Persons with Disabilities Act, 2016 (the Act of 2016) mandates both supplementary support to individuals with disabilities and facilitating their complete integration into society. This principle rises above the mere prohibition of discrimination. It means the proactive creation of conditions conducive to the person with disabilities.”
The Court further noted that Reasonable Accommodation implies that the needs of individuals with disabilities must be acknowledged and remedied to a reasonable extent, respecting their differences and facilitating their full participation in all facets of life and the accommodations provided by law must be "reasonable" and tailored to the specific needs of each individual. It said that failing to meet the unique requirements of individuals with disabilities would contravene the principle of reasonable accommodation.
“The Act of 2016 not only mandates ensuring equal opportunities for people with disabilities but also making necessary adjustments to meet their specific needs. Visually impaired individuals may make mistakes, such as typing errors, due to their impairment or may need to rely on others. These errors, stemming from their disability, should not result in discrimination or unfair treatment by employers. Rejecting the applications and then refusing to remedy the mistakes even within a reasonable time solely because of these errors, would contravene the principle of equality”, it also said.
The Court, therefore, observed that the employers should ensure that minor mistakes due to disabilities do not lead to serious consequences such as loss of job opportunity itself.
“Respondents do not contend the mistake by the Petitioner was deliberate or intended to achieve a certain end. By refusing to acknowledge that the case of the Petitioner, a person with benchmark disability, needs to be handled with sensitivity and flexibility in the procedure, the Respondents have failed to discharge its obligation under the Act of 2016”, it added.
The Court concluded that the rigid stand taken by the respondents is unduly oppressive and harsh and violates the objective of 2016 Act.
Accordingly, the High Court disposed of the writ petition, set aside the rejection of petitioner’s candidature, and directed the recruitment cell to process her candidature within six weeks.
Cause Title- Shanta Digambar Sonawane v. Union of India & Anr. (Neutral Citation: 2024:BHC-AS:9386-DB)
Appearance:
Petitioner: Advocates Uday P. Warunjikar, Sumit Kate, and Aditya P. Kharkar.
Respondents: Advocates L.T. Satelkar and P.S. Gujar.
