Prasad P.M. v LIC of India

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **FRIDAY, THE 6TH DAY OF APRIL 2018 / 16TH CHAITHRA, 1940** **WP(C).No. 6726 of 2018** ## **PETITIONER:** **PRASAD.P.M, RECORD CLERK, ON PROMOTION AS ASSISTANT, BRANCH OFFICE, L.I.C. VATAKARA.** **BY ADV.SRI.P.C.SASIDHARAN** ## **RESPONDENT(S):** **1. THE L.I.C OF INDIA, REPRESENTED BY ITS ZONAL MANAGER, L.I.C. OF INDIA, ZONAL OFFICE, L.I.C. BUILDING, 11TH FLOOR, ANNASALAI, MOUNT ROAD, CHENNAI-600002.** **2. THE SENIOR DIVISIONAL MANAGER,** **L.I.C. OF INDIA, DIVISIONAL OFFICE,** **KOZHIKODE-673001.** **BY ADV. SRI.S.EASWARAN, SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **PBS** **WP(C).No. 6726 of 2018 (M)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1- TRUE COPY OF THE DISABILITY CERTIFICATE ISSUED FORM THE GOVERNMENT DISTRICT HOSPITAL, VADAKARA DATED 16/01/2018.** **EXHIBIT P2- TRUE COPY OF THE DISCHARGE SUMMARY ISSUED BY THE AMRITA INSTITUTE OF MEDICAL SCIENCES AND RESEARCH CENTRE, ERNAKULAM DATED 16/01/2010. EXHIBIT P3- TRUE COPY OF THE OFFICE ORDER DATED 27/03/2013. EXHIBIT P4- TRUE COPY OF THE REPRESENTATION DATED 08/04/2013. EXHIBIT P5- TRUE COPY OF THE ORDER DATED 24/03/2017. EXHIBIT P6- TRUE COPY OF THE ORDER DATED 01/02/2017.** **EXHIBIT P7- TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 05/02/2018.** **EXHIBIT P8 TRUE COPY OF THE OFFICE MEMORANDUM BEARING NO. 14017/41/90-ESTT(RR) DATED 10/05/1990.** **EXHIBIT P9 TRUE COPY OF THE OFFICE MEMORANDUM BEARING NO. 36035/3/2013-ESTT(RESPONDENT) DATED 31/05/2014 ISSUED BY DEPARTMENT OF PERSONNEL AND TRAINING.** ## **RESPONDENT'S EXHIBITS** **EXHIBIT R1(A) TRUE COPY OF THE NOTIFICATION FOR DEPARTMENTAL/APTITUDE TEST/PROMOTION DATED 31/12/2016.** **EXHIBIT R1(B) TRUE COPY OF THE NOTIFICATION FOR ANNOUNCEMENT OF VACANCIES DATED 10.3.2017.** **EXHIBIT R1(C) TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER PURSUANT TO EXT.R1(A)** **EXHIBIT R1(D) TRUE COPY OF THE NOTIFICATION FOR DEPARTMENTAL/APTITUDE TEST/PROMOTION DATED 13.12.2017.** **EXHIBIT R1(E) TRUE COPY OF THE APPLICATION DATED 30.12.2017 SUBMITTED BY THE PETITIONER. EXHIBIT R1(E) TRUE COPY OF THE APPLICATION DATED 30.12.2017 SUBMITTED BY THE PETITIONER. EXHIBIT R1(F) TRUE COPY OF THE NOTIFICATION DATED 2.3.2018. EXHIBIT R1(G) TRUE COPY OF THE LETTER DATED 22.2.2018 ISSUED BY THE CORPORATION. /TRUE COPY/** **PA TO JUDGE** **PBS 11/4/2018** **“CR”** ## **P.V.ASHA J.** ## **-----------------------------------W.P.(C).No.6726 of 2018** ## **-------------------------------------** Dated this the 6[th] day of April, 2018 ## **J U D G M E N T** Petitioner is a physically disabled person working as Record Clerk in the LIC office at Vadakara. He filed this writ petition aggrieved by his posting at Neleshwar, as per Ext.P6 order dated 01.02.2018 on his promotion as Assistant. 2. Petitioner is having 60% disability, his disabilities are explained in paragraph 4 of the writ petition as follows: “This 43 year old male patient presented with history of difficulty in walking of 28 years duration, which increased for past 6 years. Complaint started after he had an accident while playing and became hemiplegic following, which he was admitted to Medical College Hospital Calicut. He was on traction for one month followed by Minerva Jacket for 6 months with which his weakness improved by difficulty in walking persisted which progressively increased over 8 years and became more severe over past 6 years. Now history of swaying two sides while walking and slipping of chappal and difficulty in getting up from sitting position. History of minimal weakness of left upper limb. History of urinary hesitancy. W.P.(C).No.6726 of 2018 2 3. It is stated that he is unable to walk by himself without the help of another person and even for attending to his primary personal requirements, he needs the help of others. He is almost immobile; the facilities in the office at Vatakara branch is conducive to his physical condition. According to the petitioner, a transfer to another place either on promotion or otherwise, will result in very serious prejudice to him as it will not be accessible to him; he will not be able to work or even move around; the assistance which he avails as at present will not be available in any other office, not only because of the distance to the other offices, but also on account of the non-availability of the helping hands on whom he depend now. 4. Petitioner entered service in LIC as a Sub Staff in 1990; got promotion as Record Clerk in the year 1996; he worked at Nileshwar, Mattannur and Thalassery; he was transferred to Vatakara Branch in W.P.(C).No.6726 of 2018 3 the year 1999 based on his request and has been continuing there. In the year 2010, he had to undergo a spinal surgery after which he became totally immobile. However, he appeared for the departmental examination and got qualified for promotion as Assistant. As per Ext.P3 order dated 27.03.2013, he was offered a posting as Assistant at Payyannur. In view of his physical disability to move, he had to decline the offer and requested for retention at Vatakara. In the year 2016-17 also, he appeared for the departmental examination and got himself qualified. Thereafter when vacancies were notified in 2017, he submitted application dated 17.01.2017 opting for posting at Vatakara, Thalassery and Koylandy in the order of preference for posting. As per Ext.P5 order, he was posted as Assistant at Taliparamba, on 24.03.2017. As he was unable to move to another station, he requested to retain him at Vatakara itself. Petitioner could not accept that also for the W.P.(C).No.6726 of 2018 4 very same reason. He was thereupon moved to the contingency list. Ext.P6 order was passed thereafter on 01.02.2018 posting him at Nileswar from the contingency list. Petitioner again submitted a representation Ext.P7 explaining the practical difficulties, he is facing to move even a single step he would be facing on his posting away from the present station, on account of his disabilities. Petitioner has filed this writ petition at this stage and an interim order was passed staying the operation of Ext.P6. 5. Respondents have filed a counter affidavit stating that petitioner was posted at Vatakara on transfer at his request and has been continuing there since February 1999. He appeared in the test for promotion in 2012-13, but he declined promotion pointing out his disability to join the posts away from Vatakara; he again applied for the test notified in December 2016. Petitioner had applied for posting W.P.(C).No.6726 of 2018 5 at vatakara, Thalasserry and Koyilandi. Vacancies were not notified in those stations. Petitioner was posted at Thaliparamba and he declined the same. Thereafter he was given posting at Nileswar branch as per Ext.P6 order in February 2018. His request to give him a posting at Vatakara could not be acceded to. Therefore he was moved to the contingency list. It is stated that no vacancies were notified at Vatakara for promotion. It is stated that pursuant to Ext.R1(d) notification dated 13.12.2017, for departmental test for promotion, petitioner again submitted Ext.R1(e) application indicating Vatakara, Thalasserry and Koilandi as his choice stations. Respondents thereafter notified the vacancies on 02.03.2018 as per Ext.R1(f), at Kanhangad, Nileswar and Sultan Bathery. It is stated that no vacancy is notified at Vatakara. It is also stated that once petitioner submitted his application again after declining posting at Nileswar, he cannot claim posting either at vatakara or W.P.(C).No.6726 of 2018 6 Nileswar. It is also stated that there are 9 Assistants in Vatakara branch and there is no vacancy of Assistant available in Vatakara for accommodating the petitioner; the cadre strength of Assistants in Kozhikode is 350, but there are only 190 Assistants. In view of the shortage of Assistants, the operation of the Offices under the respondents are seriously affected. It is also stated that there are 4 applications for transfer to Vadakara branch pending from 2015 onwards and none of those applications could be considered so far, because of the interim order, staying the promotion and posting of petitioner as per Ext.P6 order. According to the respondents, petitioner cannot be retained as a Record Clerk or as an Assistant in Vatakara in view of his promotion and in the absence of vacancies in the office at Vatakara and petitioner does not have any right to be retained at Vatakara. 6. I heard Sri. P.C. Sasidharan the learned W.P.(C).No.6726 of 2018 7 Counsel for the petitioner and Sri. Easwaran, learned Standing Counsel for the respondents. 7. Physical disability of the petitioner-that is the petitioner is a person who is almost immobile is not in dispute. It is evident that the respondents have not considered the statutory right of the petitioner as a person with disability. Section 20 of the Rights of Persons with Disabilities Act, 2016, reads as follows: **Non-discrimination in employment** .- - (1) No Government establishment shall discriminate against any person with disability in any matter relating to employment: - 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, exempt any establishment from the provisions of this section. - (2) Every Government establishment shall provide reasonable accommodation and appropriate barrier free and conducive environment to employees with disability. - (3) No promotion shall be denied to a person merely on the ground of disability. - (4) No Government establishment shall dispense with or reduce in rank, an employee who acquires a disability during his or her service: Provided that, if an employee after acquiring W.P.(C).No.6726 of 2018 8 disability is not suitable for the post he was holding, shall 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 supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. - (5) The appropriate Government may frame policies for posting and transfer of employees with disabilities. 8. Before the PWD Act, 2016 came into force non- discrimination in employment was provided for in Section 47 in chapter VIII of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, which read as follows: **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 W.P.(C).No.6726 of 2018 9 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. 9. While the 1995 Act protected the employees with disability, from denial of promotion on the ground of disability, under Section 47 (2) of the Act, Section 20 of the 2016 Act protects the employees not only from denial of promotion but also from any form of discrimination, apart from ensuring barrier free and conducive environment. The employer has also to frame policies to protect them from transfers. 10. The 1995 Act as well as the 2016 Act are enacted with the object to create barrier free and non-discriminatory environment for the disabled persons. The preamble of the 2016 Act, read as follows: “WHEREAS the United Nations General Assembly adopted its Convention on the Rights of Persons with Disabilities on the 13th day of December, 2006. AND WHEREAS the aforesaid Convention lays down the following principles for empowerment of W.P.(C).No.6726 of 2018 10 persons with disabilities,— - (a) respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons; - (b) non-discrimination; - (c) full and effective participation and inclusion in society; - (d) respect for difference and acceptance of persons with disabilities as part of human diversity and humanity; - (e) equality of opportunity; - (f) accessibility; - (g) equality between men and women; - (h) respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities; - AND WHEREAS India is a signatory to the said Convention;” 11. Thus the 2016 Act is brought into force with the object of empowerment of Physically disabled persons. Therefore employer is duty bound to ensure that that the disabled person is not denied his right to work with dignity and in that process he is not denied any benefit, which is due to him, on account of disability. In the judgment in **Rajive Raturi v. Union of India** [(2018) 2 SCC 413] the Apex Court while considering the claim for proper and adequate access to public places to visually disabled persons, W.P.(C).No.6726 of 2018 11 ## observed as follows: **“4. xxxx** Equality not only implies preventing discrimination (example, the protection of individuals against unfavourable treatment by introducing anti-discrimination laws), but goes beyond in remedying discrimination against groups suffering systematic discrimination in society. In concrete terms, it means embracing the notion of positive rights, affirmative action and reasonable accommodation. The move from the patronising and paternalistic approach to persons with disabilities represented by the medical model to viewing them as members of the community with equal rights has also been reflected in the evolution of international standards relating specifically to disabilities, as well as in moves to place the rights of persons with disabilities within the category of universal human rights. 12. In **Jeeja Ghosh v. Union of India** , where the Apex Court was considering the case of a passenger with cerebral palsy who was subjected to indifferent treatment by the airlines without any regard to her physical disability, it was held as follows: “46. xxxxxx The subject of the rights of persons with disabilities should be approached from human rights perspective, which recognised that persons with disabilities were entitled to enjoy the full range of internationally guaranteed rights and freedoms without discrimination on the ground of disability. This creates an obligation on the part of the State to take positive measures to ensure that in reality persons with disabilities get enabled to exercise those rights. There should be insistence on the full measure of general human W.P.(C).No.6726 of 2018 12 rights guarantees in the case of persons with disabilities, as well as developing specific instruments that refine and give detailed contextual content of those general guarantees. There should be a full recognition of the fact that persons with disability were integral part of the community, equal in dignity and entitled to enjoy the same human rights and freedoms as others. It is a sad commentary that this perception has not sunk in the mind and souls of those who are not concerned with the enforcement of these rights. The persons suffering from mental or physical disability experience and encounter nonpareil form of discrimination. They are not looked down by people. However, they are not accepted in the mainstream either even when people sympathise with them. Most common, their lives are handicapped by social, cultural and attitudinal barriers which hamper their full participation and enjoyment of equal rights and opportunities. This is the worst form of discrimination which the disabled feel as their grievance is that others do not understand them. 13. Learned counsel for the petitioner relied on the judgment of the Apex Court in **Bhagwan Dass and another V Punjab State Electricity Board** [(2008) 1 SCC 579] and argued that the respondents are adopting a highly insensitive and apathetic attitude towards petitioner, who is unable to have a normal healthy life, due to his incapacitating disability. The respondents are denying the statutory rights of petitioner while refusing to discharge their W.P.(C).No.6726 of 2018 13 corresponding obligation to protect him from discrimination. In that case the Apex Court, while considering the case of a Class IV employee, who lost his vision, deprecated the action of the superior officers in the Punjab State Electricity Board observing that it was their duty to explain to him about his legal rights. 14. It is seen that petitioner had been declining his promotions from 2013 onwards only because of his disability on account of the postings given to him far away from his residence and the office at Vatakara. Sub Section 2 of Section 20 of the Act, 2016, obliges the respondents to provide barrier free and conducive environment to employees with disability. Sub section 3 provides that no promotion shall be denied to a person merely on the ground of disability. In this case though the promotion was not denied, petitioner was unable to accept it because he is incapacitated to move. Therefore on the ground that he applied for W.P.(C).No.6726 of 2018 14 postings where vacancies were not notified or that he declined postings and submitted applications again cannot stand in the way of taking a positive action in the case of petitioner, in order to create for him a barrier free or conducive atmosphere in the office. Therefore in the light of the mandate contained in the provisions contained in subsection 2, 3 and 5 of Section 20 of the Act, in its true spirit and intent, and in the light of the dictum laid down by the Apex Court in the judgment in **Rajive Raturi** 's and **Jeeja Ghosh** 's case (supra) the respondents have to take all efforts to see that petitioner is able to enjoy the benefit of promotion by protecting his right to live and work with dignity and without discrimination. 15. From Exts.P9 and P10 orders issued by the Government of India, produced along with the reply affidavit, it can be seen that even before the enactment of the new Act 2016, Government of India has directed the departments under it and the Public W.P.(C).No.6726 of 2018 15 Sector Enterprises to ensure protection to the physically handicapped persons. Paragraph (h) of Ext.P9 order issued on 31.03.2014 reads as follows: (h) As far as possible, the persons with disabilities may be exempted from the rotational transfer policy/ transfer and be allowed to continue in the same job, where they would have achieved the desired performance. Further, preference in place of posting at the time of transfer/promotion may be given to the persons with disability subject to the administrative constraints. The practice of considering choice of place of posting in case of persons with disabilities may be continued. To the extent feasible, they may be retained in the same job, where their services could be optimally utilised. 16. Ext.P9 order is applicable to LIC also being a Central Public Sector Enterprises. The Department of Public Enterprises is directed to ensure implementation of the guidelines under them also. Therefore, the respondents are duty bound to see that no prejudice is caused to the petitioner in the process of promotion. If the petitioner cannot be accommodated in a post available he should be given the benefit of promotion. W.P.(C).No.6726 of 2018 16 However in view of the difficulties pointed out by the respondents to accommodate one more Assistant in the Office at Vatakara, I am of the view that considering the physical condition of the petitioner, it will be only appropriate in the interest of justice that petitioner is allowed to continue as Record Clerk itself and to grant him all benefits attached to the post of Assistant. It will be open to the respondents to accommodate the petitioner against a regular vacancy of Assistant as and when it becomes available in the present office. The writ petition is disposed of accordingly. Sd/- **P.V.ASHA, JUDGE.** AS