Case title: Deaf Employees Welfare Associations and Ors. Vs. Union of India (UOI) and Ors.
The Supreme Court in this 2013 decision, heard the petitioners/government employees who sought travel allowance equal to that given to visual and orthopedically handicapped employees and said that Human dignity of deaf and dumb persons is harmed when they are being marginalized, ignored or devalued on ground that disability that they suffer is less than visually impaired person which clearly violates Article 21, Article14 and various provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.Thus the respondents were directed to grant transport allowance to deaf and dumb persons also on par with other disabled employees of Central and State Governments and other establishments.
Edited excerpts from the judgement are provided herein under:
“ 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.
- 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.
- 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 wherein it send final recommendations to the Ministry of Finance, stating that the Ministry of Social Justice strongly favored a grant of travel allowance.
- 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.
- 6. 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.
- 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.
- 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.
- 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.
- 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:
(i). “disability” means-
(ii) low vision;
(iv) hearing impairment;
(v) locomotor disability;
(vi) mental retardation;
(vii) mental illness.
(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.
- 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”
- Chapter VIII of the Disabilities Act deals with “Non-Discrimination”. Section 44 of the Act deals with the ‘Non-discrimination in transport’,
- Chapter XIII deals with “Social Security”. Section 68 deals with the ‘Unemployment allowance’.
- 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.
- 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.
- 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.
- 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.
- 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 orthopedically handicapped employees of Central and the State Governments and other establishments wherever such benefits have been extended to the blinds and orthopedically handicapped employees. Ordered accordingly.”