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2004 Supreme(Bom) 1011
IN THE HIGH COURT OF BOMBAY
Shah A.P., Acting C.J. Kamdar S.U., J.
National Federation of Blind, Maharashtra ….. Petitioners.
Versus
State of Maharashtra others ..... Respondents.
Public Interest Litigation No. 129 of 2003, decided on 22-7-2004.
Advocates appeared:
P.P. Chavan i/b. Little Co., for respondent No. 5.
Ashok Kotangle, for respondent No. 7.
The main legal point established in the judgment is the government's obligation to effectively implement the provisions of the Disabled Persons Act, 1995, particularly in relation to the reservation of posts for visually impaired and disabled persons.
Headnote:
Disability Rights - Implementation of Disabled Persons Act, 1995 - Sections 32, 33, 34, 36, 38 - The judgment discusses the inaction of the government in implementing the provisions of the Disabled Persons Act, 1995, particularly in reference to the reservations of 3% provided thereunder. The court issues wide-ranging directives to the government for effective implementation of the Act, including reconstitution of the commission/committee for identification of posts, identification of posts at every layer of employment, and filling of the identified posts.
Fact of the Case:
The petitioner, a trust running a federation for the visually impaired, filed a petition seeking the court's intervention to enforce the provisions of the Disabled Persons Act, 1995. The petitioner contended that the government had not effectively implemented the provisions of the Act, particularly regarding the reservation of posts for visually impaired and disabled persons.
Finding of the Court:
The court found substantial inaction on the part of the government and other respondents in implementing the Act. It noted that the identification of reserved posts was limited to lower categories of employment and that there was a large backlog of unfilled reserved posts. The court issued wide-ranging directives to the government for effective implementation of the Act.
Issues: The main issue was the government's failure to effectively implement the provisions of the Disabled Persons Act, 1995, particularly in relation to the reservation of posts for visually impaired and disabled persons.
Ratio Decidendi: The court held that the government's approach towards handicapped citizens was not commensurate with the requirement and mandate of the law. It emphasized the need for reconstitution of the commission/committee for identification of posts, identification of posts at every layer of employment, and filling of the identified posts.
Final Decision: The court issued wide-ranging directives to the government for effective implementation of the Disabled Persons Act, 1995, including reconstitution of the commission/committee for identification of posts, identification of posts at every layer of employment, and filling of the identified posts.
2. Prior to two decades or so, a section of people who were physically handicapped, i.e. either visually impaired or polio stricken or handicap suffered by virtue of various accidents have always been looked at as an insignificant and non-useful segment of the population. In the last 20 years or so, a great stride has been achieved the world over by virtue of principles of upliftment implemented either through employment or self-sufficient vocations. This is an important development and new vistas in providing moral booster to this class of the society which has been mentally disturbed by virtue of the fact that they are suffering from certain handicaps, the mental state of such people is quite depressed which deliberately requires able bodied people to boost their morale for the purpose of making them achieve something in the life.
3. We have seen that this approach has been adopted initially in England when an Act known as Disabled Persons (Management) Act, 1944 was enacted. Even an advanced country like England found a lot of difficulties in implementation of the provisions of the said Act. Consequently a new Act was enacted known as Disability Discrimination Act, 1995 with various features giving emphasis to the upliftment of these handicapped people. It is not mercy which they need. It is an opportunity which they need. We do show mercy but do not offer the opportunities. That mindset is the greatest set back for upliftment of this segment of the people. It thus needs an attitude change.
4. In the past in England it was found that by and large employers were reluctant to provide employment to the disabled on the ground that they would be less productive than the normal able bodied person would be. A survey conducted in respect of the same has indicated a complete prejudicial mind set of the emp1oyer.
5. A need arose for a change in mindset of these employers. A calculated programme was then put in operation to indicate that in fact the persons suffering from common disability and impairment are able to give equal productivity for the jobs on which they are employed. On occasions it has been found that these very people are even surpassing the productivity of normal able bodied people. It is because of the morale booster administered on such people had great motivation factor that the productivity increased multifold. This change in the mind set of the employers also needs to be brought to this country and attitude towards people with disabilities is required to be drastically changed.
6. In the present petition, we are finding that inspite of a legislation enacted by the Parliament in respect of providing equal opportunities to the persons with disability, there is a total inaction on the part of the Government itself to implement the provisions thereof. In light of the aforesaid facts, we are constrained to take up the present matter and pass necessary orders and directions to enforce effective implementation of the said Act. Before we pass actual operative orders, it is necessary to set out certain facts which are briefly stated are as under:-
7. The petitioner who is a trust and running a federation for welfare, rehabilitation and over all development of the visually impaired persons has filed the present petition. By this petition, the petitioner has knocked on the doors of this. Court and has requested us to invoke a Public Interest Jurisdiction to help this class of citizens.
8. One of the contentions raised in the present petition is that section 33 of the Act specifically provides for reservation for the visually impaired or disabled persons in the Government and/or semi-Government o
